Duet schemes are normally formed when the land upon which it is constructed on cannot be subdivided. A sectional title scheme is then established in terms of the Sectional Titles Act, Act 95 of 1986 (hereinafter referred to as the STA) for which development of a Body Corporate is established in terms of the Sectional Titles Schemes Management Act, Act 8 of 2011 (hereinafter referred to as the STSM ACT) when any of the units or both are transferred from the developer to any other person. Both the STA and the STSM Act are applicable to duet ownership.
The following questions have been asked in this regard:
- Must owners of duet houses register with the Community Schemes Ombud Service (hereinafter referred to as CSOS)?
- Must a duet development have rules?
- What is the position with regard to the payment of levies?
- What is the position with regard to issuing of a clearance certificate on the sale of one of the sections?
- How will a dispute between the two owners be adjudicated?
The Community Schemes Ombud Service Act, Act 9 of 2011 (hereinafter referred to as the CSOS Act) defines a "community scheme" as: "any scheme or arrangement in terms of which there is shared use of and responsibility for parts of land and buildings, including but not limited to a sectional title development scheme, a share block company, a home or property owner's association, however constituted, established to administer a property development, a housing scheme for retired persons, and a housing co-operative as contemplated in the South African Co-operatives Act, 2005 (Act 20 No. 14 of 2005) and "Scheme" has the same meaning".
The STSM Act defines a 'development scheme' as: "a scheme in terms of which a building or buildings situated or to be erected on land within the area of jurisdiction of a local municipality is or are; for the purposes of selling, letting or otherwise dealing therewith, to be divided into two or more Sections".
From the aforesaid it appears to be clear that the CSOS Act and the STSM Act finds application in duet developments and therefore the Body Corporate established for the scheme, with a SS scheme number describing the scheme (which the owner will find in his/her title deed), must register the scheme with the CSOS.
The owners of a duet development (who are both trustees in terms of the STSM Act) must consequently establish and operate an administrative fund (to which fund they must contribute by payment of budgeted levies) for the repair, maintenance, management an administration of the common property, which common property inter alia includes the exterior of the buildings, fencing, garden's, driveways, security fencing, access gate, etc.
Subject to Prescribed Management Rule 17(2), the owners must further conduct meetings and take minutes. They must also issue clearance certificates (a certificate issued by the trustees confirming that the owner has paid all funds due to the Body Corporate) where an owner decides to sell a unit.
An owner of a duet house that intends to extend his/her section for example, will also have to comply with the provisions of Section 24 of the STA (as amended), which compliance will include the following:
- Consent of your neighbor as co-member of the Body Corporate;
- Building Plans, duly approved by the Local Authority;
- Amendment of Sectional Title Plan and approval by the Surveyor General, once the building is constructed; and
- Registration at the Deeds Office of the amended plan of extension and amended participation quotas.
- Arrange appropriate endorsement on the title deed.
Since the STSM Act finds application of duet developments, the prescribed rules as per Annexure "1" (Management Rules) and Annexure "2" (Conduct Rules), promulgated under the Regulations to the STSM Act, also finds application.
A duet development is however not a sectional title development in the traditional sense of the word, such as a high rise building with numerous sections and in practise the administration of a duet scheme is hardly ever complied with by the owners as is required in terms of the legislation under discussion.
In terms of Section 10(2)(a) read with Regulations 6(6) of the STSM Act, the prescribed Management Rules may be added to, amended or repealed by unanimous resolution, provided that at least 30 % of the units must be owned by persons other than the developer before that can be done. Owners can thus in theory decide to the repeal the Management and conduct Rules, but will still have to comply with the provisions of the ST Act, the STSM Act and the CSOS Act.
it is rather advisable to amend the Rules to provide clarity on the responsibility for maintenance and obligations concerning the use of common property areas. The Rules can provide for joint responsibility, for shared use of common property such as a shared driveway, electric fencing, motorised access gate, etc. and can confer the obligation on each owner to him-/herself to maintain other common property areas where such common property areas can also, in terms of the Rules, be allocated for the exclusive use thereof by the relevant owner.
As a duet owner, you and your neighbor may have a good understanding, respect one-another and contribute to common expenses, but one day the devil may move in next door and as such it is advisable to have an appropriate set of Rules in place, governing the specific requirements for the maintenance and enjoyment of your duet Scheme.
Any dispute between the co-owners should be referred to CSOS that will consider the adjudication process.
Izak Du Pisanie
EY Stuart Inc. Attorneys
