Warning for South Africans who own sectional title properties

Experts warned South African sectional title owners that long-term use or levy payments do not create ownership of exclusive use areas.

This was explained by law firm VDM Incorporated’s Director of Community Schemes and Compliance, Johlene Wasserman.

According to Wasserman, South African sectional title owners received a clear warning in 2025 – exclusive use areas are not informal arrangements, and long-standing use does not equal ownership.

This follows a recent KwaZulu-Natal High Court judgment, which has significant implications for owners, trustees, and conveyancers across the country.

The case, Essack NO v Thangavelu, Wasserman explained, arose from a dispute over a parking bay in a sectional title scheme.

“One owner had used the bay for many years, paid levies for it, and believed it formed part of his property rights. However, the exclusive use area had never been formally transferred,” she explained.

“The court confirmed that exclusive use areas exist in law only if they are properly created and, where required, registered. Informal agreements, historic usage, or the payment of levies do not create ownership.”

Because no registered transfer had taken place, the owner in this case held no real right to the parking bay, she noted.

An exclusive use area is a defined portion of common property – such as a parking bay, garden, or storeroom – reserved for the use of a particular owner.

Wasserman explained that there are two lawful ways in which exclusive use areas can be created in sectional title schemes.

“Exclusive use areas may be created as real rights by way of a registered notarial deed of cession in terms of the Sectional Titles Act (STA),” she said. “These rights must be clearly shown on the sectional plan and registered in the Deeds Registry.”

“Only once registration has occurred does ownership of the exclusive use area legally exist, making the right transferable and enforceable against future owners.”

Exclusive use areas can also be created by scheme rules. However, these only confer personal rights of use, not ownership.

“Where exclusive use is created in the management rules, a unanimous resolution of the body corporate is required; where it is created in the conduct rules, a special resolution is required,” she said.

Crucially, she noted that such rules only become valid and enforceable once they have been approved by the Community Schemes Ombud Service (CSOS) and a section 10(5)(c) compliance certificate has been issued.

“Until CSOS approval and certification occur, the rules have no legal effect. And rights created through rules are not registered in the Deeds Registry and do not carry the same legal protection or transferability as registered real rights,” Wasserman said.

Use and levy payments are not enough

Wasserman said a common misconception is that paying levies for an exclusive use area or using it for many years creates ownership. “The High Court has made it clear that this is not the case,” she said.

If an exclusive use area is sold but never transferred by way of a registered notarial deed of cession, the buyer does not acquire the real right, she explained.

“Until registration occurs, the original holder remains the registered owner, regardless of who uses the area or pays levies,” she said.

For owners, she said the message is simple – do not assume. “If an exclusive use area is included in a sale, insist on proof of how it was created,” she said.

Trustees and managing agents must administer schemes based on registered rights or properly approved scheme rules, not informal or historical arrangements.

For conveyancers, who play a critical role in preventing disputes, deeds of cession must be properly drafted, accurately describe the exclusive use area, and be correctly registered.

“Many long-running disputes arise from conveyancing oversights made years earlier,” Wasserman cautioned.

“The law prioritises certainty. If the right does not appear in the Deeds Registry or in CSOS-approved scheme rules supported by a compliance certificate, it does not exist.”

“The judgment serves as a reminder that exclusive use areas are valuable rights, but only when they are created correctly. For sectional title owners across South Africa, the message is clear – check the paperwork, not the assumptions.”