Is your Garage really yours? Understanding Exclusive Use Areas in Sectional Title Schemes

One of the most common disputes in sectional title developments concerns garages and parking bays.

Many owners assume that because they have always used a particular garage, they automatically own it.

Unfortunately, that is not always the case.

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What is an Exclusive Use Area?

An exclusive use area (EUA) is a portion of the common property that has been set aside for the exclusive use and enjoyment of a particular owner.

Although only one owner may use the area, ownership of the land itself remains vested in the Body Corporate. The owner acquires a right of exclusive use, not ownership of that portion of the common property.

These rights are regulated by the Sectional Titles Act and the Sectional Titles Schemes Management Act.

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When is a Garage an Exclusive Use Area?

A Garage is an exclusive use area when it has been specifically created as such and is legally recognised in one of the following ways:

1. it is shown as an exclusive use area on the sectional plan registered in the Deeds Office;
2. it has been created by a notarial deed of cession and registered against the title deed; or
3. it is allocated in accordance with the provisions of the Sectional Titles Act and reflected in the scheme's registered documentation.

In these circumstances, the owner enjoys the exclusive right to use that garage, even though the Body Corporate remains the owner of the underlying common property.

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When is a Garage NOT an Exclusive Use Area?

A Garage is not an exclusive use area simply because:

• it has been used by the owner for many years;
• the estate agent said it "belongs" to the unit;
• the Seller pointed it out during the viewing;
• the Body Corporate informally allocated it;
• the Garage number matches the Section Number; or
• everyone in the scheme accepts that it belongs to a particular unit.

Unless the exclusive use right has been validly created and recorded, there may be no enforceable legal right to exclusive occupation.

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What if the Garage forms part of the Section?

Not every garage is an exclusive use area.

Some garages are incorporated into the section itself and therefore form part of the owner's registered unit.

In that case, the garage is not common property and is not an exclusive use area. Instead, it forms part of the section described on the sectional plan and reflected on the title deed.

This distinction is important because ownership and exclusive use are two entirely different legal concepts.

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Why does this matter?

The distinction can have significant practical consequences.

If the garage is an exclusive use area:

• it cannot simply be transferred independently unless permitted by law;
• the rights may be ceded only in accordance with the applicable legislation;
• levies may differ from those applicable to sections; and
• Purchasers and Banks often require confirmation that the exclusive use rights have been properly created and allocated.

If the garage forms part of the section, it is transferred automatically together with the unit.

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Before you Buy or Sell

Before signing an Offer to Purchase, always establish:

• Does the garage form part of the section?
• Is it an exclusive use area?
• Is the exclusive use right properly registered?
• Does the title deed refer to exclusive use rights?
• Does the sectional plan correspond with what is being sold?

A simple assumption can result in costly delays, disputes or even the inability to transfer the property as intended.

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Final Thought

In sectional title developments, exclusive use does not necessarily mean ownership.

Whether a garage forms part of the section, is an exclusive use area, or is simply common property can only be determined by examining the registered sectional plan, the title deed and, where applicable, the notarial documentation.

Before buying or selling a sectional title property, ensure that what you believe you are purchasing is what is legally capable of being transferred.