Why does section 44 (g) of the Sectional Titles Act, 95 of 1986 restrict the use of a section for its intended purpose?
- To protect the rights of the members (owners) of the scheme
If registered for private living purposes, the premises may not be used for business purposes, because of
- Increased noise and traffic
- Potential nuisance
- Potential business rates and taxes
Before an owner or tenant use a sectional title section for purposes other than its intended use, the owner of tenant must obtain written consent from all the owners of other sections in the scheme.
Section 44(1) reads: An owner shall‐
(d) use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment thereof by other owners or other persons lawfully on the premises;
(e) not use his section or exclusive use area, or permit it to be used, in such a manner or for such purpose as shall cause a nuisance to any occupier of a section;
(g) when the purpose for which a section is intended to be used is shown expressly or by implication on or by a registered sectional plan, not use nor permit such section to be used for any other purpose: Provided that with the written consent of all owners such section may be used for another purpose.
When we wanted to start a virtual Close Corporation, running it from our section and aware of the general poor response rate to sectional title issues, we sent a letter with the wording below to all members of the body corporate:
As a matter of courtesy we are hereby, in terms of sections 44 (1)(g) and (2)(a) of the Sectional Title Act, informing members of the Body Corporate of XXXXXX (Scheme No XX of XXXX) that we intend operating a close corporation from section XXX. It is essentially a virtual (computer and Internet-based) micro-business. We give you the insurance that the business will not in any way interfere with your or your tenants' (if applicable) use and enjoyment of individual units or the common property (Sections 44  [d & e] of the Sectional Title Act refers).
Would you please acknowledge receipt of this notification and give your written consent to our running XXXXX CC from our unit. Either e-mail your consent or please sign and drop the notification in our mail box at XXXX or fax to XXX XXX XXXX. Any non-responses by XX XXXX 20XX will be taken as a sign of consent.
Should you have any queries, please do not hesitate to call XXX XXX XXXX
However, section 44(2) further reads: (a) Any owner who is of the opinion that any refusal of consent of another owner in terms of the proviso to subsection (1) (g) is unfairly prejudicial, unjust or inequitable to him, may within six weeks after the date of such a refusal make an application in terms of this subsection to the Court.
(b) If on any such application it appears to the Court that the refusal in question is unfairly prejudicial, unjust or inequitable to the applicant, and if the Court considers it just and equitable, the Court may with a view to bringing the dispute to an end make such order as it deems fit, including an order that it shall be deemed that the requirement stated in the proviso to subsection (1) (g) is met, an order that the provisions of section 14 of this Act which the Court deems appropriate, shall be applied with reference to the amendment of the registered sectional plan in question, any other supplementary order as the Court deems fit, and an order concerning costs as it deems appropriate.
Obviously, when the intended business might violate your rights in terms of section 44 (1) (d & e) you have the right as owner to assert your rights.