What you can and can’t do in an Exclusive Use Area

 If you own a unit in a sectional title complex, you might also have the rights to an Exclusive Use Area (EUA) such as a patio, garden, courtyard or rooftop terrace that give you extra space and more privacy.

But even though you may have the exclusive right to use and enjoy that area, it is still part of the scheme’s common property and comes with specific rules and limitations. “So before you decide to build a carport, install a pool or put up a garden shed in your EUA, it’s essential to understand what the law allows, and what permissions you’ll need to get,” says Andrew Schaefer, MD of leading property management company Trafalgar.

There are two ways that an EUA can be created in a sectional title (ST) scheme, the first being in terms of the sectional plan registered with the Deeds Office when the scheme was developed. These EUAs are noted on the title deeds and are permanent unless re-surveyed and changed by a formal process.

The second type of EUA is one granted by amending the scheme’s Conduct or Management Rules. These are more flexible and easier to change but also come with slightly different implications for maintenance and levies.

In either case, however, EUAs remain common property and owners can’t just change or develop them without oversight, he says.

According to the Sectional Titles Schemes Management Act (STSMA), you may make very minor improvements to EUAs with written trustee approval. Specifically, prescribed Conduct Rule 4 states that the owner or occupier of a section must not, without the trustees’ written consent, mark, paint, drive nails, screws or other objects into, or otherwise damage or deface a structure that forms part of the common property.

However, anything that changes the external appearance of your section, affects the stability of the building or might interfere with other owners’ enjoyment of their sections or EUAs must be approved by an ordinary resolution of the body corporate at a general meeting.

In addition, says Schaefer, Prescribed Management Rule (PMR) 30(g) states that owners may not “construct or place any structure or building improvement on an exclusive use area that in practice constitutes a section or an extension of the boundaries or floor area of a section without complying with the requirements of the Act and the Sectional Titles Act (STA).

“So you can’t use just decide to use your exclusive use garden area to add on an extra bedroom or garage, for example, or enclose your exclusive use balcony to create a sunroom.

“But the body corporate may, by ordinary resolution approved at a general meeting, grant consent for things like pools, decking, paving, garden sheds, carports or any other semi-permanent or permanent structure in your EUA that would not require the sectional title plan to be redrawn and the participation quotas to be recalculated.

“But even then, the trustees may impose conditions regarding the new structure’s use or appearance – and withdraw consent if any of those conditions are breached.”

Some examples of conditions that might be imposed when granting permission for a carport, for example, could include:

• The design must comply with the aesthetic standards of the complex,
• The structure must be non-permanent or easily removable,
• No obstruction of common property or interference with utilities is allowed,
• The structure must not compromise fire access, ventilation or light to other units,
• The owner is liable for all installation and repair costs,
• The owner is responsible for obtaining any municipal plan approval that may be necessary; and
• Insurance implications and any maintenance responsibilities must be agreed upon upfront.

Similarly, if an owner wanted to build a pool in an EUA, the trustees would be right to insist that all electrical work and pump installations have valid certificates of compliance; that there should be no noise nuisance for neighbours from either the pool equipment or after-hours pool parties; that the pool must be secure with all necessary fencing and covers installed to prevent accidents; and that the owner will pay for any additional/ increased water usage.

In short, says Schaefer, an EUA can definitely enhance your lifestyle, and add value to your ST home, but you can’t just use it as you please or without considering the effect that any changes you make will have on your fellow owners and neighbours. “Indeed, it’s always best to consult your managing agent or trustees about any ideas or plans you have to make changes before you incur any professional fees or building costs.”