In the last issue, we discussed the partitioning of land. In this issue, the Sectional Title will be discussed. Sectional titles are done in terms of Section 27 of the Deeds Registries Act [Chapter 20:05] (“The Act”). This section applies to land in urban areas only. It was created to cure the inadequacies of the block share system. Section 27 of the Act allows an owner of land to register a notarial deed against the title deed to the land where he wishes to transfer to one or more persons an undivided share in the land coupled with an exclusive right to occupation.
The exclusive right to occupation is a real right in the land which is in terms of section 27 (4) is inseparable from the undivided share. This was confirmed by the use of the word “coupled” as stipulated in the case of Sibanda v Pentaville Investments (Pvt) Ltd HH-14-03.
The owner of land who wishes to create undivided shares in the land coupled with an exclusive right of occupation will usually instruct a notary public to register a notarial deed against the title deed of the land. The notary will conduct a search on the property to see if it is free from any encumbrances that may burden the property. Section 27 provides that the notarial deed should meet a specified standard.
Where a mortgage bond exists on the title of the property, consent from the bondholder is needed before the notarial deed can be registered. The notary public also checks to see if the conditions of the title do not present a bar to the sectionalisation. In addition, the notary public prepares a constitution to be used by the owners governing issues such as the rights and obligations of the owners, administration, and maintenance of the land concerned and buildings, and finally, the creation of an owners association.
There should also be compliance with town planning conditions. A Land Surveyor will prepare diagrams and Architectural plans on instruction from the owner to illustrate each unit’s area. Thereafter, the Notary Public will then draft a notarial deed creating the undivided shares coupled with an exclusive right of occupation. It is prudent to let the Surveyor General review the plans and diagrams before the notarial deed is lodged with the Deeds Registry.
After it is lodged, the Registrar examines the notarial deed and endorses on the title deed of the land that it is subject to the notarial deed. The deed is then released by the Registrar and the Notary Public files it in his protocol and registers it in his protocol register. At this stage, the owner can now transfer an individual undivided share coupled with an exclusive right of occupation to a purchaser. The units are transferred by means of a deed transfer by effecting a similar process to the transfer of a piece of land with specified exceptions which the notary public must be cognisant of.