In order to understand the nature of an exclusive use area (EUA) it is important to know what exactly qualifies it as an exclusive use area and how it is established. There are different types of EUA’s and legal implications differ according to the type.
What is an Exclusive Use Area (EUA)?
Exclusive use areas in a sectional title scheme are defined in the Sectional Titles Act as ‘a part or parts of the common property for the exclusive use by the owner or owners of one or more sections.’ Examples of what can be the subject of the exclusive use right includes gardens, parking bays, courtyards, storerooms, patios etc,.
Certain parts of the common property can be reserved, either by the developer or the body corporate, for exclusive use by a specific owner. Accordingly, such exclusive use areas form part of the common property and do not form part of a section.
The owner holding the right to exclusive use may use that area exclusively of all the other owners, but it still remains part of the common property. There is a clear difference between an owner’s undivided share in the common property and his right to the exclusive use of a part of the common property. An owner automatically has an undivided share in the common property if he is the owner of a section, but an owner does not necessarily have the same right to an exclusive use area.
EUA’s may be granted using the following ways:
- By the body corporate [At any time providing a unanimous resolution, a request through an architect or land surveyor to the Surveyor-General and a registration of a notarial deed – STSMA 5(1)(e) and STA 27(3)]
- Developer [Through establishing conduct rules that contain conferred rights to EUA’s to body corporate members rights – STSMA 10(7); and sectional titlt plans STA 5(3)(f)]
The right of exclusive use can be defined either as a ‘real’ right that is noted on the original Sectional Title plan registered at the Deeds Office, or as a ‘personal’ right that is granted when the body corporate creates a new rule for its specific Sectional Title scheme.”
Exclusive use areas (EUAs) often give rise to disputes in Sectional Title complexes and owners and prospective buyers need to make sure they understand them properly before they try to use them incorrectly or commit to the purchase of a Sectional Title unit.
Generally EUAs are intended to be used for a specific purposes such as a parking bay or as a garden, and those who hold the rights to use them must stick to this.
If an owner wants to make improvements, like installing a swimming pool in a garden that is an EUA, or putting up a roof over a balcony or veranda, they will need the written permission of the trustees.
However if an owner wants to change the purpose completely of an EUA they have to go through a very different process. For example, an owner who wanted to turn the parking bay alongside his unit into an enclosed garage and make it part of his section would first need to get the permission of the body corporate by special resolution, and then have to get a surveyor or architect to submit a new version of the Sectional Title plan to the Surveyor General for approval.
This would then by implication change the size of the owner’s section and thus his participation quota (PQ) in the scheme, which would mean an increase in their monthly levy.
This can get a bit tricky as a trustee because the body corporate is still responsible for the maintenance of EUAs. So this practically woud mean that they are obliged to charge the owners for any service as well as any repairs needed.
For example a balcony that is an EUA will need to be painted at the same time as the rest of the scheme, or lawns in gardens that are EUAs need to be mowed at the same time as the rest of the lawns in the scheme . All costs can be reasonably recovered from the EUA right holders.
Should an owner fail to repair and maintain this exclusive use area, and the Body Corporate has given the owner a thirty (30) day written notice to do so, the Body Corporate, according to Section 44(1)(c) of the Sectional Titles Act, shall be entitled to remedy the owner’s failure and to recover the reasonable costs of doing so from the owner.
If the EUA right is a personal right, it will pass on automatically and won’t change until the body corporate perhaps makes new rules for the scheme. If it is a real right registered at the Deeds Office, it can be bonded and will need to be specified in any future offers to purchase and formally ceded as part of the process of transfer handled by a conveyancer.