The legal effect of rights specific to sectional title property in South Africa, with reference to selected aspects of the Australian and Dutch law
The introduction of sectional title ownership as a new area of investigation by property law scholars, resulted in an evolvement of the traditional roots of Roman-Dutch common law of property. Although considerable research has been done on sectional titles in South Africa, due to some lacunae in legislation, certain rights specific to sectional title property still lead to uncertainty in practice. Among these are the right of the owner to extend his section in terms of section 24 of the Sectional Titles Act, the right of the developer to extend the scheme in terms of section 25 of the Sectional Titles Act and the right to exclusive use of parts of the common property in terms of sections 27 of the Sectional Titles Act and 10(7) and (8) of the Sectional Title Schemes Management Act. It is, therefore, necessary to consider the legal effect of the rights created in terms of sections 24, 25 and 27 of the Sectional Titles Act and 10(7) and (8) of the Sectional Title Schemes Management Act. In establishing this, the entitlements of the holder of the rights become clearer, as well as how the exercise of these rights will influence the owners' co-ownership of the common property. This thesis deconstructs the formulation, content and consequences of these rights systematically. The theoretical and historical background of the distinction between real and personal rights in South Africa forms the context of this study. As the exercise of these rights is a limitation on the use and enjoyment of other sectional owners of the common property, the need arises to establish the legal effect of these rights. This clarifies the extent to which the sectional owners' ownership is limited by the exercise of these rights and consequently what the ownership of the common property in a sectional title scheme entails. It was found that although it may be possible for new rights created in sectional titles to be classified as real rights, these real rights will not fit into the traditional categories of limited real rights. Fortunately, the real rights discussed in this study were statutorily created. That makes the true discovery of the wider concept of the determination of the legal effect of the right, as offered in this thesis, even more applicable. It is submitted that problems exist around the practical implications of the right to extend a section. It is further submitted that the legislator needs to phrase this section more clearly. The rights and duties of the developer to extend the scheme are investigated. It is suggested that, although the right is a statutorily-created limited real right, it does not fit within the traditional categories of limited real rights. The right of exclusive use of a part of the common property in terms of section 27 of the Sectional Titles Act and 10(7) and (8) of the Sectional Title Schemes Management Act is divided into two categories: one classified as "real" in terms of legislation the other not. Although these rights are described in legislation in detail, the exercise and content of the rights are still not clear. The uncertainty that this will create in practice is illuminated in this thesis, especially in the light of the creation of an ombud service that will hamper litigation that may clarify the position. It is submitted that the common law principles should be acknowledged as the backbone of property law to provide legal certainty where legislation is silent.This thesis paints a clearer picture of the rights created in terms of section 24, 25 and 27 of the Sectional Titles Act and 10(7) and (8) of the Sectional Title Schemes Management Act. The legal nature in terms of whether these rights are real or personal is clarified. However, the study goes further to incorporate an investigation into the legal effect of these rights, including the rights and duties involved in the exercise of these rights. This thesis, therefore, aims to contribute to the knowledge base regarding these rights that are specific to sectional titles. As a result, a clearer picture exists of what the entitlements of owners of sectional titles entail, specifically regarding their undivided share in the common property.
- Law