09 Aug Are gardens owned by unit owners or do they form part of the common property?
Are gardens owned by unit owners or do they form part of the common property?
Garden areas in sectional title schemes are generally common property. Common property is owned by all owners in undivided shares. In terms of section 37(1) (j) of the Sectional Titles Act 95 of 1986, the body corporate is obliged to maintain and repair the common property.
However, garden areas can be subject to exclusive use rights and can be determined by reviewing both the schemes conduct rules and the sectional plan. This type of exclusive use is granted by passing a special resolution at a special general meeting in favour of a particular owner is only a right registered in the rules of the scheme. If the garden areas are exclusive use areas then although all owners actually own the gardens in undivided shares, the usage of those gardens is limited to the holders of the exclusive use rights.
If the garden areas are not exclusive use areas then they are unregulated common property, owned by all owners in undivided shares, and theoretically all owners are able to use them. The fact that the gardens are walled off means that these areas are inaccessible to other residents in the scheme and that the owner of the section next to the walled off garden area has what is called de facto or ‘factual’ exclusive use of the area.
NB. For a more detailed explanation – please refer to Sections 27 and 27A of the Sectional Titles Act.