Body Corporates - Can Sectional Owners aquire Excluse Use Rights by Prescription?

By Prof. Graham Paddock

A recent query in the Paddocks Club raised an intriguing issue in a sectional title scheme: Can sectional owners acquire rights to Exclusive Use Areas (EUAs) on the common property by prescription? This question is particularly relevant in older complexes where EUAs were not formally registered but owners consider they have ‘de facto exclusive use’ of enclosed common property spaces.

Graham Paddock from Paddocks

Prof. Graham Paddock

The Scenario: In a small complex, established in the 1980s, EUA rights were neither registered at the Deeds Office nor conferred in body corporate rules. Newer owners are now demanding that these EUAs be formally registered, claiming their predecessors in title acquired the rights to garden EUAs through prescription over the 30-year period required by South African law, and that they now hold those rights.

Legal Background: The concept of acquiring property through prescription is governed by the Prescription Act of 1969. It allows a person to gain ownership of property after possessing it openly as if they were the owner for a continuous period, which in the case of land is for 30 years. However, this principle changes in the context of sectional title co-ownership.

Co-Ownership and Prescription: For co-owners, acquiring prescriptive title from other co-owners is generally not possible. All co-owners are already in legal possession of the part of the common property in question, even if it is enclosed so that they cannot access it. Since each owner has an inherent right to the use and enjoyment of the property, one owner’s exclusive use of a part of the property doesn’t derogate from the rights of others.

Case Analysis: In our case study, the owners demanding registration of EUAs appear to misunderstand the legal framework. They argue that the body corporate is obliged to register these rights since the 30-year prescriptive period has passed. However, given that common property in a sectional title scheme is co-owned, no owner can acquire exclusive rights to it by prescription. Acquisitive prescription requires possession that is adverse to the true owner’s rights, a condition not met in co-owned property. And in any event, if this view were to be held to be wrong, in the facts of this case the current owners have not personally or continually exercised rights for the required period.

Advice: It’s advisable for these dissatisfied owners to pursue the conventional path of obtaining EUA rights, which involves agreement from the body corporate and may involve payment of the market value of the formalised use rights and all the associated costs. If they continue to assert their claims based on prescription, the trustees should seek a comprehensive legal opinion. It’s crucial to understand that in a sectional title environment, the concept of prescription does not typically apply as it would in singular ownership scenarios.

Conclusion: This case study underscores the importance of understanding the nuances of sectional title law. The principles of common property co-ownership in sectional title schemes create a unique legal environment where conventional property laws like acquisitive prescription apply differently.

Courtesy: Paddocks Press

Paddocks Press Sectional Title & HOA Management News

Article reference: Paddocks Press: Volume 19, Issue 2.

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This article is published under the Creative Commons Attribution license.


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