Encroachments of Buildings on Real Right Areas

       Where there are adjacent real rights of extension registered, and where the scheme to be registered entails that one of the buildings encroach onto the other real right area of another real right holder, the holder of both the areas must cancel their rights.

        The body corporate would in turn take out a right of extension in terms of section 25(6) of the Sectional Titles Act No. 95 of 1986, complying with all the provisions thereof and would thereafter cede such real right to the envisaged holders.

        Encroachment on Common Property

        Where a real right has been registered and the building erected thereon encroaches onto common property, that right will have to be cancelled by virtue of a bilateral notarial deed of cancellation entered between the holder of the real right and the body corporate (see RCR 67 of 2011 as amended by RCR 11 of 2012).

        The Body Corporate can then take out a right of extension, in terms of section 25(6) of the Sectional Titles Act No. 95 of 1986, complying with all the provisions thereof and would thereafter cede such real right to the envisaged owner of the building who has encroached onto the common property.

        It must be noted that all real rights should have been registered prior to the taking out of such real right, in terms of section 25(6) of the abovementioned Act, in that all real right areas must have been disclosed and registered resulting in the remaining area of common property vesting in the body corporate for which the body corporate can take out a right of extension.

        Encroachment on Adjacent Real Right

        Where there are two buildings to be erected on a real right area and only one of the buildings falls completely within the real right area, (the other building encroaching onto an adjacent registered real right or common property) the building within such real right may be registered and the encroached building registered at a later stage by virtue of an extension of a section in terms of section 24 of the Sectional Titles Act No. 95 of 1986, provided such unit falls completely on common property and not on another registered real right area. Where the building which has encroached on an adjacent real right area, such real right would have to be cancelled in terms of a notarial deed of cancellation entered between the body corporate and the holder of such real right.

        Extensions and Transfer Duty

        Where a developer deviates from the section 25 plans when he/she extends the scheme, the registrar must insist on a transfer duty receipt for the rights he/she acquired when extending the scheme on the portions of the common property on which the right was not reserved. The developer who has encroached on areas of the common property not reserved must take cession of the new right on which acquisition transfer duty will be payable (see RCR 67 of 2011 as amended by RCR 11 of 2012).

ALLEN WEST

PROPERTY LAW CONSULTANT

HANNES GOUWS ATTORNEYS