Changed Circumstances in terms of section 25 of the Sectional Titles Act, 95 of 1986

In the case of Roseparkadmin CC and Others v The Registrar of Deeds (Western Cape High Court Case No. 5522/2011 dated 17 May 2011) Weinkove AJ ordered the setting aside of a rejection note that was made by the Registrar of Deeds, in accordance with Registrars' Conference Resolution 2 of 2009, together with an order for the registration of the relevant deeds albeit that the scheme was not exercised strictly in accordance with the section 25 (2) plans
 
The following, amongst others, is recorded as “Reasons for Judgement”:

• Section 25(13) of the Sectional Titles Act 95 of 1986 (“the Act”) provides “that it is the owner who feels that he is prejudiced by the changes who alone may apply to court and it is not the developer who is required to make that application.” (par. 13)
   
• Reference is made to PLC Trust and Others v The Registrar of Deeds Bloemfontein and others (case no. 4863/2010), where it was held that the Act made no provision for the withholding of registration before permitting a deviation from the original plan. The Act does also “not expressly place any duty on the Registrar of Deeds to approve the extension plan or not. That approval must be given by the Surveyor-General. All the Registrar of Deeds must do is to satisfy himself that all the formalities prescribed by the Act for registration have been complied with. He is not called upon to investigate or decide on the need for any amendment or extension of this scheme.” (par. 18). 
   
• The Judge agrees with the Judgement in the PCL Trust- case and “relieves the Registrar of Deeds from having to extend his obligations in connection with the registration of these schemes.” (par. 21).

In view of the ‘Reasons for Judgement’ in the Roseparkadmin-case, it is  no longer the responsibility of a Registrar or Conveyancer to determine  whether the right of extension being exercised is strictly in accordance with the section 25 (2) plans.

Although not being the duty of the registrar of deeds to enforce compliance with regard to deviations, it was resolved that it is Registrar's duty to ensure that the extension of a scheme is within the physical boundaries of the reserved right (see RCR 12 of 2011). Thus, should it not be possible for an examiner to determine whether the extension is being exercised within the physical boundaries of the reserved right, confirmation is this fact must be sought from the architect or land surveyor concerned (see CRC 2 of 2012).

For any queries please contact our property law division at the details below:

Tel: 012 425 3549