The Body Corporate of San Sydney v Shivani Singh and Others

The Body Corporate of the San Sydney sectional title scheme sought to regularise three buildings (intended as sections 9, 10 and 11) that had been unlawfully constructed on the common property by the original developer after its reserved right of extension had lapsed. Once the developer’s right expired, the right to extend the scheme vested in the body corporate under s 25(6) of the Sectional Titles Act 95 of 1986. The body corporate concluded an agreement in 2018 to sell and cede this right of extension to a third party, HF Property Investments (Pty) Ltd, which undertook to complete and register the extension. The body corporate required the written consent of all owners and bondholders in terms of s 25(6) of the STA read with s 5(1)(b) of the Sectional Titles Schemes Management Act 8 of 2011. Certain owners and mortgagees, in particular the first respondent, refused to consent. The body corporate applied to the High Court for an order compelling consent on the basis that it was being withheld without good cause. The High Court dismissed the application, holding that the transaction amounted to an alienation of common property and that owners lacked sufficient information. The body corporate appealed to the Supreme Court of Appeal.

The appeal was upheld in part. The High Court order was set aside and substituted with an order directing the respondents to sign the required consents for the body corporate to obtain a certificate of real right and to exercise the right of extension. Failing such consent within seven days, the Sheriff was authorised to sign on their behalf. Further relief was dismissed, and each party was ordered to pay its own costs in both the application and the appeal.

The judgment clarifies the legal nature of a right of extension that vests in a body corporate after a developer’s right has lapsed. It draws a clear distinction between alienation of common property and the alienation or cession of a right of extension, confirming that the latter is governed by s 5(1)(b) of the STSMA. The case provides important guidance for bodies corporate, owners, and conveyancers on the consent requirements applicable to extensions of sectional title schemes and limits the grounds on which consent may be refused.