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n Tydskrif vir die Suid-Afrikaanse Reg - Ondeurdagte wysigings aan Wet op Deeltitels berg onverwagte gevolge
Unintended consequences of a statutory amendment relating to sectional titles and exclusive rights to common property
With the amendments to sections 25 and 27 of the Sectional Titles Act 95 of 1986, the legislature intended to terminate malpractices relating to exclusive rights to common property within a sectional titles scheme. The exclusive rights under consideration in this contribution encompass the exclusive right reserved to the developer to develop, mostly as part of a phased development, the scheme on common property of the scheme and the exclusive use rights relating to a part of the common property. The underlying reason for legislative intervention was malpractices whereby the developer could exercise his reserved rights at whim without carrying any of the consequences of his deeds because he ceased to be an owner of a single unit within the scheme and as such was not liable for any of the costs commonly divided amongst the unit owners according to the applicable participation quota. The legislature thus enacted a provision from 2003 that any exclusive use rights reserved for any legal subject shall "revert" to the body corporate by operation of law the moment the holder of the rights no longer was a unit owner within the scheme. The same applies to the exclusive development rights reserved for the developer. As soon as the term for which the rights were originally reserved lapses the right also automatically reverts to the body corporate.
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