Sectional title extensions: why informal approval is not enough

If an alteration will extend the boundaries or floor area of your sectional-title unit, informal consent from trustees or other owners is not enough. South African law generally requires body-corporate approval by special resolution, followed by a formal sectional-plan process. A recent Supreme Court of Appeal judgment shows the risks of treating a discussion, past practice or approved minutes as legal authorisation.

Sectional-title owners often assume that an extension is simply a building-plan issue. It is not. An extension may affect common property, participation quotas, levies and the rights of every owner in the scheme. That is why municipal approval, trustee support and body-corporate approval are separate questions.

In Johannes Wessel Greeff v Body Corporate of Merriman Court and Others, the Supreme Court of Appeal (SCA) considered whether an owner could rely on informal dealings within a small sectional-title scheme as authority to extend his section. The appeal failed. The judgment is a useful warning to owners, trustees and managing agents: establish the legal approval route before plans are treated as final or construction begins.

What happened at Merriman Court?

Merriman Court is a small sectional-title scheme in Green Point, Cape Town. Over time, various owners extended parts of their units into areas that had been common property. The scheme’s affairs had historically been conducted informally.

The owner of section 1 wanted to extend his unit into a garden area over which he had exclusive use. He relied on earlier discussions, including an informal meeting at which the proposal appeared to receive support, and on the later adoption of the meeting’s minutes. He contended that he had obtained the necessary approval.

The SCA disagreed. The informal meeting had not been convened with adequate notice of a proposed resolution, and the owners had not been given the information needed to make a properly considered decision about the extension. On the evidence, the meeting was exploratory. Recording or later adopting the minutes confirmed that the discussion occurred; it did not transform that discussion into the special resolution required by law.

What approval does an owner need to extend a section?

The starting point is section 5(1)(h) of the Sectional Titles Schemes Management Act 8 of 2011 (STSMA). It provides that a body corporate must, on an owner’s application and upon a special resolution by the owners, approve the extension of the boundaries or floor area of a section.

A special resolution is a defined statutory decision. It cannot safely be replaced by an informal indication that “everyone is happy”, a trustee’s email, an unminuted conversation or a general item recorded at a meeting.

The process does not end with the special resolution. Section 24(3) of the Sectional Titles Act 95 of 1986 requires the owner, after obtaining the necessary body-corporate authorisation, to have a land surveyor or architect submit a draft sectional plan of extension to the Surveyor-General. Deeds-registration and other statutory requirements must then be addressed.

Depending on the project, the owner may also need municipal building-plan approval and compliance with scheme rules, planning controls, conditions of title and financing requirements. One approval does not automatically provide the others.

Is a unanimous resolution also required?

This point requires care.

The Full Court had treated the proposed extension into common property as an alienation that required a unanimous resolution under section 5(1)(a) of the STSMA, in addition to the special resolution contemplated by section 5(1)(h).

The SCA held that this was incorrect in light of Body Corporate of San Sydney v Singh and Others. Extending a section onto common property does not, for this reason alone, amount to an alienation of common property requiring a unanimous resolution. The relevant statutory approval for the extension is the special resolution under section 5(1)(h).

That does not mean every proposal will be straightforward. An extension may be accompanied by other transactions or decisions that trigger different statutory requirements. The facts and documents must be assessed before the required voting threshold is stated conclusively.

Why did the informal approval fail?

The judgment highlights four practical problems.

1. The meeting was not properly framed as a decision meeting

Owners must know that they are being asked to vote on a proposed extension. Adequate notice and sufficient information matter because the proposal can affect their proprietary and financial interests.

2. Apparent agreement was not the statutory resolution

Support expressed during a discussion is not necessarily a vote, and a vote is not necessarily a valid special resolution. The prescribed process and threshold must be proved.

3. Minutes record decisions; they do not manufacture them

Adopting minutes generally confirms that they are an accurate record. It does not retrospectively turn an informal discussion into a resolution that was never properly proposed and passed.

4. Historic informality does not remove current compliance duties

Previous owners may have dealt with alterations casually, or earlier extensions may later have been regularised. That history does not automatically give another owner an enforceable right to proceed without the approvals required for the present proposal.

Does exclusive use of an area give the owner a right to build on it?

Not by itself. An exclusive-use right generally allows a particular owner to use a defined part of the common property to the exclusion of others. It does not convert that area into part of the owner’s section or dispense with statutory approval for extending the section into it.

Owners should therefore distinguish among:

• the right to use an area;
• permission to carry out particular works;
• municipal approval of building plans;
• body-corporate approval by the required resolution; and
• approval and registration of the sectional plan of extension.

Treating these as interchangeable is a common source of delay, cost and litigation.

A practical approval sequence

Before committing to construction costs, an owner should ordinarily:

1. Confirm the legal character of the proposed works. Determine whether the project is an internal alteration, an extension of the section, work on common property or a combination of these.
2. Review the scheme documents. Examine the registered sectional plan, title deed, participation quota, conduct and management rules, and any exclusive-use arrangement.
3. Prepare a sufficiently detailed proposal. Owners cannot make an informed decision without plans and a clear explanation of the footprint, use, appearance, structural implications, costs and effect on the scheme.
4. Identify every required approval. This may include a body-corporate special resolution, municipal approval, trustee or rule-based consent, lender consent, and approval by the Surveyor-General and Registrar of Deeds.
5. Give proper notice and pass the resolution formally. The notice, agenda, quorum, voting threshold and record of the decision should comply with the STSMA and the scheme’s applicable management rules.
6. Use the correct professionals. A land surveyor or architect must prepare and submit the draft sectional plan of extension. Conveyancing and registration work may also be required.
7. Do not build on an assumption. Construction should begin only when the necessary approvals are in place and their conditions are understood.

Trustees and managing agents should follow the same discipline from the other side. They should avoid giving casual assurances that may be mistaken for final approval and should clearly record which body must decide, what information is outstanding and what remains conditional.

What if the body corporate refuses or delays approval?

An owner does not automatically have a right to compel approval merely because the proposal appears reasonable or similar alterations were allowed in the past. The first task is to establish whether a valid application was made, whether the owners were given adequate information, and whether the body corporate made—or failed to make—the decision required by law.

If a dispute develops, the appropriate route may involve renewed engagement with the body corporate, the Community Schemes Ombud Service or court proceedings, depending on the relief sought and the facts. Litigation should not be the first substitute for an incomplete application or defective meeting process.

In Merriman Court, the SCA noted that the owner needed to address the other owners’ concerns and return to the body corporate. The body corporate was not obliged to reconsider the proposal before those concerns had been addressed.

The lesson for owners and bodies corporate

The central lesson is not that sectional-title owners can never reach practical agreements. It is that an agreement must be made by the right decision-maker, through the required process, on adequate information.

For owners, early legal and technical advice can prevent substantial wasted expenditure. For bodies corporate, a disciplined process protects all owners and reduces the risk that informal statements later become the basis of urgent litigation.

SD Law advises owners, trustees and bodies corporate on sectional-title law, scheme governance and property disputes. If you are planning an extension or facing a dispute about approval, obtain advice before construction or enforcement steps begin.

This article provides general information and does not constitute legal advice. Sectional-title disputes are fact- and document-specific.

SD Law – Simon Dippenaar & Associates Inc.

Attorneys, Notaries & Conveyancers

SD Law is a Cape Town law firm with a strong practice in divorce and family law, urgent eviction matters, antenuptial contracts, liquor licence applications and selected commercial disputes. Clients instruct us when the matter is urgent, high-stakes or strategically sensitive, and when they want direct, clear legal advice backed by practical litigation experience.

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