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AFFECT OF THE AMENDMENT OF SECTIONAL TITLES ACT BY THE
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27/2016 |
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Introduction
The Sectional Titles Schemes Management Act, 2011 (Act 8 of 2011) (STSMA) came into operation on 7 October 2016. The purpose of the STSMA, amongst other things, is to provide for the establishment of bodies corporate to manage and regulate sections and common property in sectional titles schemes; to amend the Sectional Titles Act, 1986 (Act 95 of 1986); and to provide for matters connected therewith. The amendments to the Sectional Titles Act will now be highlighted and is applicable to all deeds lodged after 7 October 2016
"(6) If no reservation was made by a developer in terms of subsection (1), or if such a reservation was made and for any reason has lapsed, the right to extend a scheme including the land contemplated in section 26, shall vest in the body corporate, which shall be entitled, subject to this section, section 5(1)(b) of the Sectional Titles Schemes Management Act and after compliance, with the necessary changes, with the requirements of paragraphs (a), (b), (c), (d) and (g) of subsection (2), to obtain a certificate of real right in the prescribed form in respect thereof.
The provision in respect of the written consent of owners and mortgagees is now contained in section 5(1)(b) of the STSMA, however , must still be obtained and lodged
Section 35 has been repealed.
Rules are no longer to be lodged with the Registrar of Deeds. Notifications in respect of the substitution, adding, amendment or repeal of Rules must now be lodged with the Chief Ombud (see the amendment and discussion of the amendment of section 11(3)(e) infra )
The current practice in respect of the preparation and lodgement of Form W upon the establishment of a body corporate must be perpetuated. The original Form W must be delivered to the relevant conveyancer and a copy thereof must be submitted to the Chief Ombudsman. This practice must only be followed when the first unit in a scheme is registered in the name of any person other than the developer, and not upon the transfer of all the other units
Form W must be adapted to read along the following lines: CERTIFICATE OF ESTABLISHMENT OF BODY CORPORATE IN TERMS OF THE PROVISIONS OF SECTION 2(1) OF THE SECTIONAL TITLES SCHEMES MANAGEMENT ACT 8 OF 2011
Prepared by me
CONVEYANCER (State full name and surname) I, Registrar of Deeds at ……… hereby certify that a body corporate designated as the Body Corporate of the ………. Scheme, No. ……… is deemed to be established with effect from ………. Signed at ……… on ……… Seal of Office Registrar of Deeds
"(e) a certificate by the Chief Ombud stating that the rules contemplated in section 10 of the Sectional Titles Schemes Management Act have been approved;"
It is important to note that section 10 of STSMA does not provide for the Chief Ombud to "approve" Rules. The said section, however, does provide for the Chief Ombud to "approve the substitution, addition, amendment or repeal of Rules." A certificate issued by the Chief Ombud must therefore be lodged with the opening of a sectional title register, only in instances where a substitution, addition, amendment or repeal of the statutory rules has been approved and affected. In instances where the statutory rules are to be made applicable to a scheme, it will be necessary for a conveyancer's certificate to be lodged to the effect that the Rules contained in Annexures 1 and 2 of the Regulations to STSMA are applicable. The filing of the rules with the Chief Ombud will only become operative after 90 days from 7 October 2016 Uncertainty at present prevails as to whether the amended/ substituted rules must be lodged with the Deeds Registry in the 90 day period. However, the Registrar will insist on a certificate along the following lines: "I ………. , conveyancer, hereby certify that the Rules are to be amended and that the required notification to the Chief Ombud will be made by the Developer or Body Corporate upon coming into operation of Regulation 6 to Act 8 of 2011". It is, however, proposed that the amended rules are lodged with the Registrar of Deeds
"(i) (aa) if a body corporate is deemed to be established in terms of section 2(1) of the Sectional Titles Schemes Management Act, that body corporate has certified that all moneys due to the body corporate by the transferor in respect of the said unit have been paid, or that provision has been made to the satisfaction of the body corporate for the payment thereof; or"
A body corporate is wef 7 October 2016 established in terms of section 2(1) of the STSMA and not section 36 of Act 95 of 1986. The section 15B (3)(a)(i)(aa) certificate must where the Body Corporate was established after 7 October 2016 refer to the STSMA and not the STA, however, reference to the STA or STMSA in the certificate is not obligatory .
Section 21 of Act 8 of 2011 reads as follows:
"Rules prescribed under the Sectional Titles Act must continue to apply to new and existing schemes until the Minister has made regulations prescribing management rules and conduct rules referred to in section 10(2) of this Act." The Minister has promulgated Rules under Annexures 1 and 2 of the Regulations to Act 8 of 2011. The rules as contained in Annexures 8 and 9 of Act 95 of 1986 are therefore no longer applicable. For any queries please contact our property law division at the details below: Allen West Daleen Loubser |
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Disclaimer: This newsflash is for general information only and should not be used as legal or professional advice. No liability can be accepted for any errors or omissions, nor for any loss or damage arising from reliance and any information therein |
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