SECTIONAL OWNERSHIP

Definitions: -Sectional Ownership describes separate ownership of units or sections within a complex or development. - Section as per section 2 of the Sectional titles Act is defined as a section shown as such on a sectional plan. -Sectional Title deed is defined in section 2 of the Sectional titles Act as a certificate of registered sectional title or a deed of transfer in respect of a sectional title. -Common property was described in the case of Erlax Properties (Pty) Ltd v Registrar

of Deeds Johannesburg as land on which the buildings are situated and such parts of
the buildings are not included in a section. Introduction: Sectional ownerships in Botswana is governed by the Sectional Titles Act cap 33:04. It occurs where a building is erected and sectioned off into more than 1 unit, each unit being owned by a different owner and that owner having real rights only in relation to his/her unit and not that of others. The owner of each unit can alienate and exercise rights ONLY with respect to his/her unit, and is entitled to the use of any common property but may not alienate or transfer this right of use to any other. Section 4 of the sectional titles Act headed ownership of buildings states: Sectional (1) Notwithstanding anything to the contrary in any law(a) a building comprised in a scheme and the land on which the building is situated, may be divided into sections and common property in accordance with the provisions of this Act; (b) separate ownership of the sections or an undivided share thereof may be acquired in accordance with the provisions of this Act; (c) the owners of the sections shall own the common property in undivided shares in accordance with the provisions of this Act; (d) any real right may be acquired in or over any such section or an undivided share therein or common property in accordance with the provisions of this Act; and (e) the Registrar may, in accordance with the provisions of this Act register in the Deeds Registry a title deed whereby ownership in, or any lease

of, or any other real right in or over, any such section or an undivided share therein or common property is acquired. (2) Subject to subsection (3), a scheme may relate to more than one building erected or to be erected on the same piece of land, or more than one piece of land, whether contiguous or non-contiguous. (3) The building to be divided into sections shall be situated only on one such piece of land or on two or more such contiguous pieces of land registered in the name of the same person and in respect of which a certificate of consolidation of title has been registered. Elements of sectional ownership: 1) Private ownership of individual unit of the property. 2) Co-ownership of communal property e.g communal gardens, swimming pool, parking area, etc. 3) Membership of the association of property owners or the body corporate. Rights of a sectional title owner: 1) Private ownership of a section or unit. 2) Entitlement to use of communal property. 3) Entitlement to membership of body corporal. 4) Right not to prevent the use of property by owners of respective sections. 5) Each owner has the right to place checks and balances on the trustees of the body corporate as well as take part in decision making and development plans.

Body corporate: This consists of every person who owns a unit in the building or complex. It is run by 2 elected trustees who are appointed to manage, control and administer the property. It operates as a separate legal entity somewhat like a business which can sue or be sued in relation to the property. Right of development is vested in the body corporal but can be trusted to any sectional owner who owns at least one unit where permission is sought from the body corporal and the registrar of deeds.

Differences between freehold Ownership and Sectional Ownership: FREEHOLD Transfer of full ownership rights for building as well as the land it is built on. SECTIONAL Separate ownership of units or sections within a complex, the land on which the building is erected is jointly owned in undivided shares by all sectional owners. Development rights of communal property lie with all owners collectively however sectional development/disposal can be done by sectional owner of that particular unit only. When owned, owner acquires a sectional title deed. 3rd parties if aggrieved take action against the body corporal and not individual owners of the building.

Owner can dispose or develop property at will, without the consultation of any other.

When owned, owner acquires a title deed 3rd parties may take action against owner in his personal capacity with all issues related to his/her property.

Croxford Trading 7 (Pty) Ltd v The body corporate of the Inyoni Rocks Cabanas Scheme A sectional title scheme known as Inyoni Rocks Cabanas was registered in 1978. Inyoni Beach Apartments (Pty) Ltd was the registered developer and owned a unit in the building. The unit was subsequently sold to a 3rd party in 2003, and in 2007, that party in turn transferred the unit to the appellants. The appellants contended that the developers right being a real right had been transferred to them when there was a transfer of the ownership of the single unit by Inyoni Beach Apartments. The court held that though the right of development was a real right and transferable at the time when it was registered, Inyoni Beach Apartments had forfeited this right when they no longer owned a section in the building, and this right was now vested in the body corporate. N.B: right of development may only be registered by an owner of at least one section of the building. This right is forfeited when ownership ceases to exist and returns to the body corporal.