- Property lawyers warn that many sectional title schemes are relying on informal exclusive use arrangements with no legal force.
- Long-standing practices around parking bays, gardens and storerooms are exposing owners and trustees to disputes.
- The reaction follows renewed scrutiny of how exclusive-use areas are created, recorded and transferred.
Legal practitioners in the sectional title space are sounding the alarm over how exclusive use areas are being handled across South Africa, warning that many schemes are operating on assumptions rather than enforceable rights.
The concern follows renewed attention on exclusive use areas after a recent High Court ruling, but lawyers stress that the real issue lies not with the judgment itself, but with how widespread non-compliance has become in practice.
According to Johlene Wasserman, Director of Community Schemes and Compliance at VDM Incorporated, disputes over parking bays, gardens and storerooms are increasingly common because schemes have blurred the line between convenience and legality. “What we are seeing is that many owners believe long-term use or levy payments give them ownership,” she says. “In law, that is simply not correct.”
Informal arrangements are no longer defensible
Wasserman says it is common for exclusive use areas to be treated as part of a unit even where no legal right exists. In many schemes, parking bays are allocated decades earlier without proper documentation, while gardens and storerooms are sold verbally or noted only in sale agreements.
“These arrangements often work until there is a sale, a dispute, or a change in trustees,” she explains. “That is when everyone suddenly realises that there is no registered right backing what has been treated as ownership for years.”
The risk, she says, is not theoretical. Buyers may believe they are acquiring exclusive use rights that do not exist, sellers may assume they can transfer something they do not legally own, and trustees may unknowingly administer schemes based on invalid arrangements.
Where schemes are going wrong
At the centre of the problem is a misunderstanding of how exclusive-use areas are lawfully created. In some cases, schemes rely on historic use without ever creating a real right. In others, rules are adopted but never approved by the Community Schemes Ombud Service, leaving them legally ineffective.
“Even where schemes think they have done the right thing, there are often missing steps,” Wasserman says. “Without CSOS approval and the required compliance certificate, rules have no legal effect. And where a real right was intended, the absence of registration in the Deeds Registry means the right simply does not exist.”
This creates a dangerous gap between what owners believe they have and what the law recognises.
Trustees and managing agents under pressure
The reaction has placed trustees and managing agents under increased scrutiny. Wasserman notes that bodies corporate are expected to administer schemes strictly according to registered rights and approved rules, not informal practices inherited from previous administrations.
“Trustees often feel trapped by arrangements they did not create,” she says. “But continuing to enforce informal exclusive use arrangements exposes the scheme to legal challenge.”
Managing agents, she adds, are increasingly being asked to justify levy charges linked to exclusive use areas that have no legal foundation. “Once that question is raised, the scheme must be able to produce documentation. If it cannot, the arrangement is vulnerable.”
Conveyancing failures resurface years later
Conveyancers are also facing renewed criticism, particularly where exclusive use areas are included in sale agreements but never properly transferred.
“Many disputes we see today stem from conveyancing oversights made years ago,” Wasserman says. “A deed of cession was never registered, or the exclusive use area was poorly described. Those mistakes only surface when ownership changes or when conflict arises.”
She warns that conveyancers can no longer rely on assumptions based on levy schedules or long-standing use. “Every exclusive use area must be traced back to its legal source.”
Certainty over convenience
For Wasserman, the broader lesson is about legal certainty in an environment where property rights carry real financial value. “Exclusive use areas are valuable, but only if they exist in law,” she says.
“If the right does not appear in the Deeds Registry or in CSOS-approved rules supported by a compliance certificate, it does not exist.”
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
