Expert Guidance: Extensions and Change of Use in Sectional Title Schemes

Extensions and change of use in sectional title schemes aren't just personal choices by owners. They touch everything from town planning scheme compliance to insurance risk, levy fairness, and legal compliance.

From Mock AGMs to Real-World Decisions

Two weeks ago, I attended Johannesburg's much-anticipated "Let's Get Physical" sectional title scheme event. The format was refreshing and practical — a mock annual general meeting (AGM) featuring a panel of leading industry specialists and service providers.

This wasn't just a run-through of AGM formalities. Each speaker brought not only their professional expertise but also a solid grounding in sectional title legislation. It was fully interactive — attendees could ask questions in real time — and even after seven years as a trustee, I left with a fresh set of insights.

Extensions and Change of Use in Sectional Title Schemes — Why It Matters

One of the hot topics that sparked real interest was the extension of sections and exclusive use areas (EUAs), and the change in use of sections. These might seem like personal choices by owners — enclosing a balcony, converting a garage, or building a carport — but they have serious implications for the entire scheme.

These changes touch everything from town planning scheme compliance to insurance risk, levy fairness, and legal compliance. As trustees, it's important to understand where your responsibility starts and where it ends.

1. Participation Quotas (PQ)

When a section is extended (for example, by enclosing a balcony or converting a garage into a bedroom), its floor area increases. Because PQs are based on floor area, this affects:

• Voting rights
• Levy contributions

If the Sectional Title Plan isn't updated to reflect the new floor area, you end up with an owner paying less than their fair share, and other owners footing the difference.

Important to note: The updated PQ schedule forms part of the draft sectional title plan submitted to the Surveyor-General. Once approved, a conveyancer updates the deed at the Deeds Office. The PQ process is governed by the Sectional Titles Act 95 of 1986, not just the STSMA.

2. Town Planning Scheme and Zoning Requirements

Every municipality operates under a town planning scheme (also called a land use scheme). This sets development controls, such as:

• Permitted land use
• Parking minimums
• Building lines (setback distances)
• Maximum roof coverage percentage

If a garage is converted into a bedroom, it might breach the scheme's parking requirements. If too many carports are added, the scheme might exceed allowed coverage.

Even if the body corporate approves it, any building or change of use that doesn't comply with the town planning scheme is unlawful.

3. Building Plans Are Legally Required

Under the National Building Regulations and Building Standards Act 103 of 1977, no one may build anything without first getting written approval of building plans from the local authority (clause 4(1)). The Act defines a "building" broadly — if you can fall over it, into it, or if it can fall on you, it likely qualifies. This includes:

• Balcony enclosures
• Carports
• Internal extensions
• Pergolas and shade structures

No building work may start until council has approved the plans in writing. And no building plans can be approved unless the proposed structure complies with the applicable town planning scheme.

4. EUA vs Section Property — Critical Distinction

This is where many trustees get caught out — the rules are completely different depending on what you're enclosing:

Enclosing a balcony that forms part of the section:

This is an extension of the section, which means:

• Building plans are required
• Body corporate approval via special resolution is required
• Sectional title plans must be updated
• PQ must be recalculated

Enclosing an EUA balcony:

This is encroachment on common property and triggers much stricter requirements:

• Either a special or unanimous resolution may be required, depending on how the EUA was created (refer STSMA 5(1)(a), 5(1)(f))
• Building plans are still required
• The risk and complexity are significantly higher

Best practice: Always seek guidance from a sectional title practitioner or legal expert to determine which type of resolution is required. Don't guess — the consequences of getting it wrong are serious.

5. The Correct Process Order

Here's the sequence that must be followed — no shortcuts allowed:

Step 1: Body Corporate Resolution

• Obtain the correct type of resolution (special or unanimous) from owners.
• Nothing can proceed without this first.

Step 2: Appoint the Right Professional

• Appoint a qualified professional to prepare and submit building plans.
• Your job as trustees is to ensure the right professional is appointed, not to assess compliance yourselves.
• The professional must certify compliance with the town planning scheme.

Step 3: Building Plan Approval

• Professional submits plans to council.
• No construction may start until written approval is received.

Step 4: Construction

• Only after council approval may building work commence.

Step 5: Update Records

• Sectional title plans must be updated.
• Title deed must be updated simultaneously.
• PQ changes take effect.

6. Hidden Risks Trustees Must Consider

Here's where things get serious, and where trustees often find themselves exposed:

Insurance Risk (The Big One)

• Illegal alterations (i.e. any structure without approved building plans) are usually not covered by insurance.
• If a carport collapses and injures someone, and no professional was involved, liability may fall on the body corporate and by extension, the trustees.
• With approved plans, the professional's indemnity insurance provides cover. Without them, you're exposed.

Levy Fairness

• If sectional plans and PQs aren't updated after an extension, that unit is paying too little, and others are subsidising them.
• A 10% increase in floor area without PQ update means 10% of that property isn't contributing to levies.

Maintenance Planning

• The 10-year maintenance plan may be based on the wrong unit sizes.
• Responsibility for maintaining enclosed areas may become unclear.
• Who maintains what was once an EUA balcony but is now part of the section?

Legal Exposure

• Trustees have a fiduciary duty.
• Approving or ignoring illegal building work could be seen as condoning unlawful conduct.
• You cannot allow illegal construction — it creates risk for the entire scheme.

Practical Examples

Garage Conversion

• Loss of parking.
• May breach parking minimums under town planning scheme.
• Requires building plan approval and updated sectional plan.

Carport Addition

• May push scheme over roof coverage limit.
• If it collapses without professional involvement, trustees may be liable.
• Requires building plan approval.
• Requires body corporate resolution.

Balcony Enclosure

• First determine: EUA or part of section?
• Different resolution requirements apply.
• Affects PQ and maintenance liability.
• Requires professional assessment and building plans.

Trustee Checklist: Before You Approve

1. Determine the correct resolution type — get professional advice if uncertain.
2. Ensure proper body corporate resolution — this must come first.
3. Appoint qualified professionals — your job is appointment, not assessment.
4. Confirm building plan approval — in writing from council, not just drawings.
5. Flag insurance risks — unapproved structures may void cover.
6. Insist on sectional plan update — including PQ changes after construction.
7. Check impact on other owners — levy fairness, aesthetics, precedent.

Remember: trustees don't have to be experts, but they must not act blindly. Your role is to ensure the process is followed and the right professionals are appointed.

Final Thoughts

The "Let's Get Physical" event reminded me that trusteeship is a learning journey. Extensions and changes of use aren't just admin tasks — they involve town planning scheme compliance, building regulations, levy fairness, and scheme safety.

Handled well, these changes can add value and harmony. Handled poorly, they can cause disputes, cost money, or expose the scheme to serious legal and insurance risks. The key is following the correct process, appointing the right professionals, and never trying to assess complex compliance matters yourself.

Special Thanks to Our Expert Contributor

E: hh@4realdesign.co.za

T: 083 461 8833 / 060 451 1897

This is not a legal advisory blog post. Always check the relevant legislation or consult a sectional title legal specialist.