When Sectional Titles Go Off-Plan: The Legal Risks Of Unapproved Alterations, Exclusive Use Areas, And Informal Carports

Property owners often assume that once a sectional title scheme is registered, day-to-day changes within sections or exclusive use areas are largely a private matter. Unfortunately, this assumption can expose both sellers and purchasers to significant legal, financial and compliance risks.

This article examines a common but problematic scenario:

where a second dwelling is approved on a stand, the owner opts for a sectional title scheme instead of subpision and thereafter unauthorised structural and use changes are made, without updating building plans or sectional plans.

The Scenario in Brief

• The owner obtained municipal approval for a second dwelling on a property.
• Instead of subpiding, the owner opened a sectional title scheme (two sections).
• Section 2 was allocated an exclusive use area described as a "motorhuis" (garage).
• The garage was later converted into a living room, meaning it no longer functions as a garage.
• The owner of Section 2 then erected a carport, used exclusively by that owner.
• No amended building plans were approved by the municipality.
• The Sectional Plan and Participation Quotas were not amended.
• No formal Body Corporate consent process was followed.

Why this is a legal problem?

1. Contravention of the National Building Regulations

The conversion of a garage into a habitable living area constitutes a material change of use.

Without approved amended building plans:

• The structure is unlawful
• The municipality may issue:
  • Compliance notices
  • Fines
  • Demolition orders
  • Occupation restrictions

Importantly, municipal non-compliance follows the property, not the person who created it.

2. Exclusive Use Area Misuse

An exclusive use area allocated as a "motorhuis" is legally limited to that purpose.

Using it as a living room:

• Breaches the Sectional Titles Act
• Contravenes the registered sectional plan
• May constitute an unlawful extension of a section, affecting participation quotas

The erection of a carport, without proper approval, compounds the illegality.

3. Unauthorised Extension of a Section

If the former garage is now a living room:

• It may legally be regarded as an extension of Section 2
• Extensions require:
  • Body Corporate approval
  • Municipal approval
  • Amendment of sectional plans
  • Recalculation of participation quotas (if applicable)

Failure to do so can invalidate future transactions or financing.

4. Body Corporate consent was required

Once a sectional title scheme exists:

• Decisions affecting common property or exclusive use areas are not unilateral
• Even in a two-section scheme, the Body Corporate exists by operation of law

The owner of Section 2 could not lawfully:

• Change the use of the garage
• Erect a carport
• Alter the appearance or footprint of the scheme without the formal consent of the Body Corporate.

Is the Owner of Section 1 Also Liable?

This is a crucial question.

Short answer:

Potentially, yes especially going forward.

Once a Body Corporate exists:

• It has a statutory duty to ensure compliance with:
  • " Building regulations
  • " The sectional plan
  • " Municipal requirements

If Section 1's owner:

• Is aware of the non-compliance, and
• Does nothing to regularise it, they may be exposed to:
  • Enforcement action by the municipality
  • Disputes with future purchasers
  • Bond approval failures
  • Claims that the Body Corporate failed in its duties

Silence does not equal protection.

Risks for a New Purchaser

A purchaser buying into this scheme may face:

• Refusal of bond finance
• Inability to resell
• Municipal enforcement action
• Costly retrospective approvals
• Disputes within the Body Corporate

Standard voetstoots clauses do not protect against statutory illegality.

What should be done to safeguard the property and a New Owner?

1. Immediate Compliance Audit

• Confirm approved building plans
• Compare them to existing structures
• Identify all deviations

2. Submission of Amended Building Plans

• Garage-to-living-room conversion
• Carport erection
• Any structural alterations

Approval must be obtained before transfer, where possible.

3. Body Corporate Resolutions

• Proper resolutions approving:
  • Change of use
  • Structures on common or exclusive use areas
• Consent must be formally recorded

4. Amendment of Sectional Plans

If required:

• Amend the sectional plan to reflect:
  • Extensions
  • Exclusive use changes
• Update participation quotas if affected

5. Disclosure to Purchasers

• Full written disclosure of:
  • Current status
  • Steps taken to regularise
  • Any outstanding approvals

This reduces post-transfer disputes and professional liability.

Key Takeaway

Sectional title schemes are highly regulated environments.

What may appear to be a "small practical change" can have serious legal consequences if done without proper approvals.

Where garages become living rooms, carports appear without consent and plans remain unchanged, the risks multiply for sellers, purchasers and co-owners alike. Early legal and conveyancing intervention is not optional; it is essential.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.