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Transferring Sectional Title Exclusive Use Areas: Section 27 Notarial Cessions vs Rule-Based Allocations

Before signing an Offer to Purchase a sectional title unit with a parking bay, garden, or storeroom, verify whether the Exclusive Use Area is a registered real right (Section 27) or a rule-based allocation (Section 10(7)).

In a South African sectional title scheme, parking bays, garages, private gardens, patios, balconies, and storerooms frequently do not form part of the registered section itself. Instead, they form part of the common property reserved for the exclusive use and enjoyment of the owner of a specific section.

Because South African law recognises two fundamentally different types of Exclusive Use Areas (EUAs), buyers, sellers, estate agents, and conveyancing attorneys frequently fall into costly traps when transferring a unit. Attempting to transfer a Section 27 exclusive use parking bay on an ordinary Deed of Transfer - or failing to cede it via a Notary Public - leaves the buyer without legal title to the bay.

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The Two Types of Exclusive Use Areas in South Africa

An Exclusive Use Area can only be lawfully created and held in one of two ways:

1. Registered Exclusive Use Areas (Section 27 of the Sectional Titles Act)

A Section 27 Exclusive Use Area is a formal real right in immovable property registered in the Deeds Office under the Sectional Titles Act 95 of 1986 (STA):

• How it is created: Either reserved by the developer when opening the sectional title register (or later established by the Body Corporate pursuant to a unanimous resolution of members), surveyed and delineated to scale by a land surveyor or architect on the registered sectional plan with a distinctive code (for example, Parking Bay P81, Garden G4, or Storeroom S12), and approved by the Surveyor-General.
• Separate Title Deed: Upon registration, the Registrar of Deeds issues a Certificate of Real Right of Exclusive Use Areas. When ceded to a unit owner, the holder receives a registered Notarial Deed of Cession of Exclusive Use Area, which serves as the separate title deed for that area.
• How it is transferred: A Section 27 EUA does not transfer automatically when the unit is transferred, nor can it be transferred inside an ordinary Deed of Transfer. In terms of Section 27(4)(a) of the STA, it can only be transferred from the seller to the buyer by the registration of a bilateral Notarial Deed of Cession executed before a Notary Public, lodged simultaneously with the transfer documents of the unit.
• Can it be mortgaged? Yes. Because a Section 27 EUA is a registered real right in immovable property, banks can register a mortgage bond over it alongside the unit, adding tangible resale and finance value.
• How it is cancelled: Under Section 27(5) of the STA, a registered EUA can only be cancelled by registering a Notarial Deed of Cancellation entered into between the holder of the right and the Body Corporate, duly authorised by a special resolution of the members.

2. Rule-Based Exclusive Use Areas (Section 10(7) of the STSMA)

A Rule-Based Exclusive Use Area (historically created under Section 27A of the 1986 Act and now governed by Section 10(7) and Section 10(8) of the Sectional Titles Schemes Management Act 8 of 2011) confers a personal right created via the scheme's Management or Conduct Rules:

• How it is created: Instead of amending the sectional plan at the Surveyor-General and registering certificates in the Deeds Office, the developer or Body Corporate incorporates a rule into the scheme's Management Rules (by unanimous resolution) or Conduct Rules (by special resolution).
• Mandatory layout plan and schedule: Under Section 10(8) of the STSMA, the rule must include a layout plan drawn to scale clearly showing the locality of the distinctively numbered exclusive use parts and the purposes for which they may be used, accompanied by a schedule indicating to which specific section each part is allocated. The amended rules must be lodged with and approved by the Community Schemes Ombud Service (CSOS).
• How it is transferred: Because a rule-based EUA is allocated in the scheme's rules to the owner from time to time of a specific section, no Notarial Deed of Cession is registered in the Deeds Office. When ownership of the section transfers to the buyer, the right to use the rule-based EUA follows the section automatically in terms of the rules.
• Can it be mortgaged? No. Because it is a personal right under the scheme rules and not a real right registered in the Deeds Office, a rule-based EUA cannot be mortgaged.

Comparison: Section 27 Registered EUAs vs Section 10(7) Rule-Based EUAs

• Governing Statute
  • Section 27 EUA: Sectional Titles Act 95 of 1986 (Section 27).
  • Rule-Based EUA: Sectional Titles Schemes Management Act 8 of 2011 (Section 10(7) & 10(8); formerly Section 27A of the STA).
• Nature of Legal Right
  • Section 27 EUA: Real right in immovable property registered in the Deeds Office.
  • Rule-Based EUA: Personal/contractual right recorded in the CSOS-approved scheme rules.
• Method of Transfer on Sale
  • Section 27 EUA: Bilateral Notarial Deed of Cession drafted by a Notary Public and registered at the Deeds Office.
  • Rule-Based EUA: Follows the unit automatically via the allocation schedule in the scheme rules (no Deeds Office registration).
• Proof of Title
  • Section 27 EUA: Registered Notarial Deed of Cession and delineation on the registered Sectional Plan.
  • Rule-Based EUA: CSOS-stamped Management or Conduct Rules containing the scale layout plan and allocation schedule.
• Additional Conveyancing Costs
  • Section 27 EUA: Buyer pays additional notarial cession fees and Deeds Office registration levies.
  • Rule-Based EUA: No notarial cession fee or Deeds Office fee payable.

Case Law Warning: Botched Exclusive Use Area Transfers (Lee v C.H Body Corporate)

Attempting to cut corners when transferring Exclusive Use Areas is a major source of litigation. In the Full Bench High Court judgment of Lee and Another v C.H Body Corporate [2026] ZAGPJHC 1285, a sitting trustee purchased a flat owned by the Body Corporate together with exclusive use rights to Parking Bay P81 and two rooms (Rooms 19 and 20) forming part of the common property.

Instead of obtaining a special resolution of members and executing a registered Notarial Deed of Cession, the conveyancer purported to transfer the exclusive use areas by way of an ordinary Deed of Transfer riding on the sale of the unit. Evaluating the transaction under Section 27(4)(a) and Section 27(5) of the Sectional Titles Act, Maier-Frawley J (Van Aswegen AJ and Mphahlane AJ concurring) confirmed that:

• Exclusive use rights over common property cannot be transferred by way of an ordinary Deed of Transfer riding on the sale of a unit;
• An owner's interest in a Section 27 exclusive use right passes to another owner only by the registration by the Registrar of Deeds of a Notarial Deed of Cession entered into by the parties;
• Cancelling such a right requires the registration of a Notarial Deed of Cancellation entered into by the holder and the Body Corporate, duly authorised by a special resolution of its members; and
• Because neither a notarial deed nor a special resolution existed (alongside a single-signature Power of Attorney and a false Section 15B(3) levy clearance certificate), the transfer was unlawful. The court ordered the unit and Parking Bay P81 re-transferred to the Body Corporate, referred the conveyancer to the Legal Practice Council (LPC), and imposed punitive de bonis propriis costs.

Four Common Pitfalls When Buying a Unit with a Parking Bay or Garden

1. "Orphaned" Section 27 Exclusive Use Areas: During a previous sale, the estate agent and conveyancer transferred the unit on a Deed of Transfer but forgot to execute a Notarial Deed of Cession for the parking bay or storeroom. Years later, when you try to buy the unit, a Deeds Office search reveals that the parking bay is still registered in the name of a former owner from 10 years ago (or the original developer). Tracking down a former owner or deregistered developer to sign a rectifying cession can delay transfer by months.
2. Informal "De Facto" Parking Bays and Gardens: A seller advertises a ground-floor flat with an "exclusive fenced garden" or "two dedicated parking bays". Upon inspecting the sectional plan and the CSOS rules, the conveyancer discovers that the garden or bays were never registered under Section 27 and never incorporated into a Section 10(7) rule schedule - the seller simply enclosed common property or parked there by informal arrangement.
3. Ceding an EUA to a Non-Owner: A Section 27 Exclusive Use Area can only be held by a registered owner of a section in that specific sectional title scheme. If an owner sells their flat to Buyer A, they cannot retain the Section 27 parking bay for themselves (unless they still own another unit in the building) or sell it to someone who does not own a unit in the scheme. They may, however, notarially cede the parking bay to another existing unit owner within the same scheme.
4. Unpaid Exclusive Use Contributions Blocking Levy Clearance: Under Section 3(1)(c) of the STSMA, the Body Corporate must require the owners of sections entitled to the right to the exclusive use of a part of the common property to make additional financial contributions to defray the costs of rates, insurance, maintenance, and utilities for that area. All exclusive use contributions must be paid in full before the Body Corporate will issue a Section 15B(3) Levy Clearance Certificate.

How to Protect Yourself in the Offer to Purchase

Before signing an Offer to Purchase a sectional title property, ensure the contract clearly specifies:

• The exact section number and participation quota on the sectional plan;
• The exact Exclusive Use Area number(s) (e.g., Parking Bay P81, Storeroom S4, Garden G2);
• Whether each EUA is held by way of a Section 27 Notarial Deed of Cession (in which case the seller must deliver the original Notarial Deed to the conveyancer for simultaneous notarial cession) or allocated in terms of Section 10(7) Scheme Rules (in which case the seller must furnish written confirmation from the Body Corporate and a copy of the CSOS-approved rule schedule confirming the allocation).

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