Member Article

The Emergency Regulations published under the National Disaster Management Act, 2002 to reduce the impact of the coronavirus (COVID-19) were understandably, under the circumstances, published in a hurry with a number of scenarios not being thought of and being left to interpretation. One of those is sectional title living.

The Regulations provide that every person is confined to his or her “place of residence” during the lockdown period save for certain prescribed exceptions. “Place of residence” must be given its ordinary meaning, which would be the place where a person actually lives and has a home used as the main residence. The term “resides” refers to one’s permanent home.

How is this to be interpreted in communal living such as a sectional title complex where there is common property and exclusive areas in parts of a building?

From an ownership perspective, in a sectional title scheme, one owns a unit comprising a section and an undivided share in the common property (together with all other owners). One may also have the exclusive use of a part of the common property such as parking bays, balconies and storerooms. That will collectively be considered the place of residence. It cannot be limited to one’s section ie, the area of the section depicted on a sectional plan. That could lead to ludicrous results if, for example, a balcony is an exclusive use area, it would mean that it cannot be used during this period, or if a storeroom or parking bay is common area but held as an exclusive use area it would mean that it cannot be accessed due to the emergency regulations. They must logically be included as parts of a place of residence.

One must also consider the undivided share in common property that, by definition, is part of a unit in a sectional title scheme. That also logically should be part of the place of residence. Those common areas are effectively co-owned and for the use of all owners (which includes tenants and occupiers).

Accordingly, in a sectional title scheme, owners would have, as their place of residence, all the components of the unit that are owned and held by the owner being the section, the exclusive use areas and the joint use of the common property.

However, to access all the components of the place of residence requires movement from one component to the other. The use of the place of residence must be subject to the other provisions of the Regulations which provide that every gathering is prohibited save for the exception of a funeral limited to 50 people.

“Gathering” under the Regulations means any assembly, concourse or procession in or on any building pace or premises.

The ordinary meaning of:

1. “assembly”, is a group of people gathered in one place for a common purpose;
2. “concourse”, is a crowd or assembly of people; and
3. “procession”, is a number of people moving forward in an orderly way.

Therefore, using the components of a place of residence in a sectional title scheme as interpreted above, one cannot gather with other people. To do so is an offence and an offender can be liable to a fine or imprisonment. In addition, the overall intention of the Regulations and the lockdown together with all other recommendations of self-distancing should also be implemented. Common sense as to how common areas are utilised must prevail under the circumstances and bodies corporate should, if required, impose regulations for their use.

We are in uncharted waters, but the above is a view based on a legal interpretation of sectional titles in order to give meaning to the Regulations.

Andrew BembridgeProperty and Real Estate Director[email protected]+27 83 259 2877

COVID-19, also known as the Coronavirus, is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was declared a pandemic by the World Health Organization on 11 March 2020. The disease has since been reported in over 190 countries.