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Friction between owners in sectional title schemes

A common source of friction amongst the members of a sectional title scheme occurs where one of the owners wants to use his or her unit for business purposes where it is designated on the registered plan as being for residential purposes.

Section 44(1)(g) of the Sectional Titles Act, 1986, provides that a sectional title owner cannot use his section for any purpose other than that shown expressly or by implication on the registered sectional title plan, except with the written consent of all the other owners.

Section 44(2)(a) then provides that if such consent is refused–

"Any owner who is of the opinion that any refusal of consent of another owner… is unfairly prejudicial, unjust or inequitable to him, may within six weeks after the date of such refusal make an application… to the Court".

In Bonthuys v Scheepers (decided in the Eastern Cape High Court on 17 September 2007; case 303/2006, not yet reported) the owner of a unit in a residential sectional title scheme wanted to operate a hairdressing salon from her residential unit. She had lost her job, was in financial difficulties, and needed the extra income to pay her living expenses and support her small child.

She was unable to secure the written consent, of all the other owners, to her unit being used for business purposes. She instituted proceedings in the Magistrates’ Court in terms of section 44(2)(a) of the Sectional Titles Act and was successful in obtaining an order allowing her to operate a salon from her unit.

The other owners in the complex took the Magistrates’ Court judgment on appeal to the High Court.

The High Court ruled that the magistrate had misdirected himself by attaching too much weight to the personal circumstances of this particular owner to the exclusion of the interests of the other unit holders, who acquired their units for residential purposes only.

The High Court set aside the order made by the Magistrates’ Court.

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