Question
Are walled gardens owned by unit owners or do they form part of the common property?

I own a semi-detached townhouse in a complex of 65 units and have a front garden and back garden. The complex has two full time gardeners who only mow lawns once a week. For the rest I obviously buy my own plants and shrubs and maintain my gardens.

Are these private gardens common property? The complex has a lot of other common property. My concern is others' rights to my private property.

Answer
Garden areas in sectional title schemes are generally common property which is owned by all owners in undivided shares.

Whether or not the garden areas are subject to exclusive use rights is something you can determine by inspecting both the scheme's rules and the sectional plan.

When inspecting the scheme?s rules you will be looking for rules made in terms of section 27A of the Sectional Titles Act 95 of 1986 (the Act) granting exclusive use rights in favour of the owners of particular sections.

When inspecting the sectional plan you will be looking at whether or not the garden areas are marked as exclusive use areas. If they are then the owners who benefit from those rights have exclusive use rights granted in terms of section 27 of the Act. Section 27 exclusive use rights are different to section 27A exclusive use rights in that they can be bonded.

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. If this is the case this situation should be regularized so that the owners are granted de lege or legal exclusive use rights either in terms of section 27 or section 27A of the Act.

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