6.       Application to Director for approval of sectional plan

            (1) Where a developer intends to carry out a development scheme, he shall cause to be prepared by a land surveyor or an architect, a sectional plan in accordance with the provisions of section 7 to be submitted to the Director in terms of section 9.

            (2) Where an existing building, which is to be converted into a development scheme, is a residential building occupied by tenants under a tenancy agreement, no application shall be made by a developer to the Director under subsection (1) unless the developer-

     (a)     has, prior to the making of the application, notified, every tenant, in writing by a letter delivered either personally or by registered post, of a meeting of all tenants in possession to be held at a date, at least 14 days after the delivery of the letter, in the building or such other building as may be specified in the letter which is within a reasonable distance from the building in question and is located within the area of jurisdiction of the local authority;

     (b)     has, by himself or his agent at the meeting, furnished the tenants with full particulars of the proposed development scheme;

     (c)     has given every tenant the option to acquire the unit he occupies in accordance with the provisions of section 11; and

     (d)     has attached to his application, a certificate in the prescribed form that he has complied with the provisions of paragraphs (a) - (c).

            (3) For the purposes of subsection (2), "tenant" means a tenant who is a party to a tenancy agreement entered into with the developer or any of his predecessors in title.

            (4) Notwithstanding the provisions of subsection (2), a developer may submit his application to the Director if all the tenants have stated in writing that they do not wish to acquire the proposed units which they occupy and a conveyancer has certified in writing that all such statements have been received in respect of all the units in question.

            (5) If any sectional plan relates to a building which is in the process of being erected, the developer shall cause the relevant documents to be submitted in terms of section 9 if such building-

     (a)     is sufficiently completed for the measurements referred to in section 8 (1) to be undertaken, and

     (b)     whilst the erection thereof is not yet completed, complies with the provisions of the Town and Country Planning Act, and the  Building Control Act and the regulations made thereunder.

7.       Manner of preparing sectional plan

            (1) Subject to subsection (2) a sectional plan shall be prepared and signed by a land surveyor or an architect in accordance with the provisions of this section.

            (2) Any delineation of an exclusive use area of which the boundaries are not represented by physical features of a permanent nature shall be prepared by a land surveyor and signed by him.

            (3) A sectional plan shall-

     (a)     delineate the boundaries of the land in accordance with the relevant diagram or general plan and the location of the relevant building or buildings in relation thereto;

     (b)     indicate the name of the scheme;

     (c)     include a plan to scale of each storey in the building shown thereon;

     (d)     subject to subsections (4) and (5), define the boundaries of each section in the building and distinguish each section by a number;

     (e)     show the floor area to the median line of the boundary walls of each section, correct to the nearest square metre, and the total of the floor areas of all the sections;

     (f)      delineate in the prescribed manner any exclusive use area;

     (g)     have endorsed upon or annexed to it a schedule specifying the quota of each section in accordance with section 35(1) or (2) and the total of the quotas of all sections shown thereon; and

     (h)     be drawn in such manner and contain such other particulars as may be prescribed.

            (4) The common boundary between any section and another section or common property shall be the median line of the dividing floor, wall or ceiling, as the case may be.

            (5) For the purposes of subsection (3)(d) the boundaries of a section shall be defined-

     (a)     by reference to the floors, walls and ceilings thereof, or as may be prescribed; and

     (b)     in respect of a part of a section (such as a stoop, porch, balcony, atrium or projection) of which the boundaries cannot be defined in terms of paragraph (a) but being appurtenant to a part of that section which can be defined in terms of that paragraph, in the manner prescribed.

            (6) A section may consist of non-contiguous parts of a building.

8.       Duties of land surveyors and architects and non-liability of State

            (1) A land surveyor or architect preparing a sectional plan shall prepare the sectional plan from an actual measurement undertaken by him or under his direction in such manner as will ensure accurate results, in accordance with the provisions of this Act.

            (2) The State, any officer or employee in the service of the State shall not be liable for any defective measurement or work done or performed in relation to any sectional plan by a land surveyor or architect, notwithstanding the fact that such sectional plan has been approved by the Director.

9.       Approval of sectional plan by Director

            (1) When a sectional plan is prepared in terms of section 7(1), the land surveyor or architect, as the case may be, shall on behalf of the developer submit to the Director, for his approval, the prescribed number of copies of the sectional plan.

            (2) The submission of the sectional plan to the Director shall be accompanied by-

     (a)     a certificate issued by an architect or a land surveyor stating that-

           (i)       the proposed division into sections and common property complies with the provisions of the Town and Country Planning Act and the Building Control Act and the regulations made thereunder;

          (ii)       the building to which the scheme relates, was erected in accordance with approved building plans;

     (b)     where the application is signed by a person authorised to sign on behalf of the developer, a written authority by such developer in which the person concerned is authorised to sign the application on behalf of the developer;

     (c)     in the case of an application in respect of a building referred to in section 6(5), a certificate from the architect or the land surveyor concerned to the effect that the building and the land comply with all the applicable requirements mentioned in this subsection;

     (d)     if section 6(2) applies to the scheme-

           (i)       an affidavit by the developer stating that that section has been complied with;

          (ii)       a copy of the notice referred to in section 6(2)(a) and the certificate referred to in section 6(2)(d); and

          (iii)       where applicable, a certificate from a conveyancer in terms of section 6(4);

     (e)     if section 6(4) does not apply to the scheme, an affidavit by the developer to that effect.

            (3) The manner of submission of the sectional plan and other documents shall be prescribed.

            (4) The Director shall not be responsible for investigating the correctness or accuracy of any document submitted to him in terms of subsection (2) or section 23, 26 or 27.

            (5) The Director shall not approve a sectional plan, unless the applicable documents have been submitted to him in terms of subsection (2) and such plan has been prepared in accordance with this Act.

10.     Improper conduct of land surveyors and architects

            A land surveyor or architect shall be guilty of an offence if he-

     (a)     signs, except as provided in such circumstances as may be prescribed, a sectional plan or any other plan referred to in this Act, required in connection with the registration thereof, and in respect of which he has not carried out or supervised the measurements, and has not carefully examined and satisfied himself of the correctness of the entries in any records and of the calculations in connection therewith which may have been made by any other person;

     (b)     signs any defective plan knowing it to be defective;

     (c)     makes an entry in a field record, a copy of a field record or other document which purports to have been derived from actual measurement in the field, when it was in fact not so derived;

     (d)     supplies erroneous information to the Director in connection with any scheme, knowing it to be erroneous; or

     (e)     contravenes any provisions of this Act,

shall be guilty of an offence and liable on conviction to a fine not exceeding P2 000 or to a term of imprisonment not exceeding 12 months, or to both.

11.     Restriction on sale of units occupied by tenants

            (1) Subject to the provisions of this section, no developer shall sell any unit in a development scheme which is occupied by a tenant to a person other than the tenant in possession unless-

     (a)     he has, first made an offer to sell the unit to the tenant in possession by a letter delivered either personally or by registered post;

     (b)     he has given the tenant three months' notice within which to consider the offer; and

     (c)     the tenant has either refused to accept the offer or failed to accept the offer within the period specified in paragraph (b).

            (2) Where a tenant refuses an offer or fails to accept an offer within the period specified in subsection (1)(b), the developer shall not, within a period of six months from the date on which the tenant refused to take the offer or failed to accept the offer, as the case may be, offer for sale or sell the unit to any person other than the tenant in possession at a price lower than the price at which it was offered to the tenant in possession unless-

     (a)     the developer has again offered the unit at that lower price for sale to the tenant in possession; and

     (b)     the tenant has refused the offer within a period of three months from the date thereof, or has failed to accept the offer on the expiry of the three months.

            (3) Before the expiry of the periods of three months or six months, as the case may be, specified in subsections (1) and (2), a developer shall not within either of those periods-

     (a)     require or permit any tenant in possession to pay an amount of rent higher than the amount payable by the tenant at the time of his refusal or failure to accept the offer of sale made in accordance with the provisions of subsection (1) or (2);

     (b)     require the tenant to vacate the unit unless the tenant has been guilty of non-payment of rent, or has done material damage to the unit, or has been guilty of conduct which is a nuisance to occupiers of other units in the building.

            (4) Any contract of purchase and sale entered into contrary to the provisions of this section shall be void.

            (5) A developer or any person who has performed partially or fully in terms of a contract which is void by virtue of subsection (4) shall have a claim against the other party to the extent of such performance.

            (6) A developer may in addition claim from any such person-

     (a)     reasonable compensation for the use which the person may have had of the building and land in question or any part thereof; and

     (b)     compensation for any damage caused to that building or land or any part thereof by the person, or any other person for whose acts or omissions such person is delictually liable.

            (7) A person to whom an option has been granted or a purchaser may in addition claim from the developer-

     (a)     interest at the prescribed rate on any payment made in terms of the contract, from the date of payment to the date of recovery thereof;

     (b)     reasonable compensation for any expenses incurred by him with or without the authority of the developer for the preservation of the building or land, or part thereof, or in respect of any improvements which enhance the market value thereof and which were effected by him with the express or implied consent of the developer; and

     (c)     compensation for any damage or loss suffered by him which he would otherwise have been entitled to claim from the developer on the ground of breach of contract had the contract not been void and had the developer failed to effect any transfer in accordance with the contract.

            (8) A developer who fails to comply with the provisions of subsections (1) to (3) shall be guilty of an offence, and liable on conviction to a fine not exceeding P2 000, or to imprisonment for a term not exceeding 12 months, or to both.

12.     Application for registration of sectional plan and opening of sectional title registers

            (1) A developer may, after approval of a sectional plan by the Director, apply to the Registrar for the registration of the sectional plan, and for the opening of a sectional title register in respect of the land and building thereon.

            (2) When making application for the registration of the sectional plan and for the opening of a sectional title register, a developer may in the schedule referred to in subsection (3)(b) impose registrable conditions.

            (3) An application in terms of subsection (1) shall be accompanied by-

     (a)     two copies of the sectional plan;

     (b)     a schedule certified by a conveyancer setting out the servitudes and conditions of title burdening or benefiting the land and the other registrable conditions imposed by the developer in terms of subsection (2), as well as such other particulars as may be prescribed;

     (c)     the title deed of the land in question;

     (d)     any mortgage bond to which the land may be subject, together with the consent of the mortgagee to the opening of the sectional title register and to the endorsement of such bond to the effect that it attaches to-

           (i)       the sections and common property shown on the sectional plan;

          (ii)       the certificate of real right in respect of a right reserved by him in terms of section 27(1); and

          (iii)       the certificate of real right in respect of a right of exclusive use referred to in section 29(1):

                      Provided that section 38 (5) and (6) of the Deeds Registry Act shall apply with the necessary changes to any bond which is registered against one or more pieces of land shown on the sectional plan;

     (e)     a certificate by a conveyancer stating that the rules prescribed in terms of section 38(2) are applicable, and containing the other rules (if any) substituted by the developer for those rules mentioned in that section;

     (f)      certificates of registered sectional title in the prescribed form in respect of each section and its undivided share in the common property, made out in favour of the developer; and

     (g)     such other documents and particulars as may be prescribed.

13.     Registration of sectional plans and opening of sectional title registers

            (1) When the requirements of the preceding provisions of this Act have been complied with the Registrar shall-

     (a)     register the sectional plan and allot a distinctive number to it;

     (b)     open a sectional title register in respect of the land and building thereon in the prescribed manner;

     (c)     keep by means of a computer or in any other manner such registers containing such particulars as are necessary for the purpose of carrying out the provisions of this Act and of maintaining an efficient system of registration calculated to afford security of title and ready reference to any registered deed;

     (d)     simultaneously with the opening of the sectional title register, issue to the developer in the prescribed form a certificate of registered sectional title in respect of each section and its undivided share in the common property, subject to any mortgage bond registered against the title deed of the land;

     (e)     issue to the developer, in the prescribed form, a certificate of real right in respect of any reservation made by him in terms of section 27(1), subject to any mortgage bond registered against the title deed of the land;

     (f)      issue to the developer, in the prescribed form, a certificate of real right in respect of a right of exclusive use referred to in section 29(1), subject to any mortgage bond registered against the title deed of the land;

     (g)     make the necessary endorsements on the title deed, any mortgage bond or other document, or in his records.

            (2) The Registrar shall notify the Director of the registration of the sectional plan.

14.     Effect of registration of sectional plans

            (1) Upon the registration of a sectional plan the building and the land shown thereon shall, subject to the provisions of this Act, be deemed to be divided into sections and common property as shown on the sectional plan.

            (2) A sectional plan, together with the schedule of servitudes and conditions referred to in section 12(3)(b), shall upon the registration of such plan be deemed to be part of the sectional title deed, and an owner's title to his section and his undivided share in the common property shall be subject to or shall be benefited by the servitudes, other real rights or conditions (if any) which burden or benefit the land shown on the sectional plan, and shall also be subject to any registrable condition imposed by a developer in terms of section 12(2).

            (3) Upon the registration of a sectional plan, any mortgage bond, lease, other real right or condition then registered against or affecting the land shown on the sectional plan, shall be deemed to be converted into a bond, lease, other real right or condition registered against or affecting the sections and common property shown on the sectional plan.

15.     Amendment and cancellation of sectional plans

            (1) The Director may require a land surveyor or architect who has prepared a registered sectional plan to amend, or the developer or the association to cause to be amended, any registered sectional plan found to be incorrect, or to substitute another sectional plan for the incorrect sectional plan.

            (2) The association may recover the costs incurred as a result of an amendment to a sectional plan, or the substitution thereof, in terms of subsection (1), from the developer, land surveyor or architect concerned.

            (3) If in the opinion of the Director any person is likely to be prejudiced by an incorrect sectional plan, he shall advise the Registrar as to which sections are affected by any such defect in question, and thereafter no transfer of such section and its undivided share in the common property or the registration of a real right therein shall be registered until the defect in the sectional plan has been rectified, unless the Registrar is satisfied that the delay in causing the defective sectional plan to be rectified will cause undue hardship and the person in whose favour transfer of the section and its undivided share in the common property or of a real right therein is to be registered, consents in writing to the transfer or other registration being effected prior to the rectification of the defect.

            (4) The formalities for the amendment of a sectional plan in terms of subsection (1), shall be prescribed.

            (5) The Director shall advise the Registrar of any amendment of a sectional plan in terms of subsection (1) which affects the description or extent of any section, and thereupon the Registrar shall make the necessary endorsements indicating any change of description or extent upon the Deeds Registry copy of the sectional title deed and upon any other registered document affected by such change, and shall likewise endorse the owner's or holder's copy of that sectional title deed or any such other registered document whenever subsequently lodged at the Deeds Registry for any purpose.

            (6) The Registrar may on application by a developer, which application shall be accompanied by a certificate by a conveyancer in which he certifies-

     (a)     that all the units of a scheme are registered in the developer's name;

     (b)     that, if applicable, the developer is the holder of a right referred to in section 27 or 29; and

     (c)     that no unit or right referred to in section 27 or 29 is encumbered by a sectional mortgage bond or a lease or in any other way,

close the sectional title register, and notify the Director that the sectional title register has been closed, whereupon the Director shall cancel the original sectional plan and the Deeds Registry copy thereof.

            (7) Whenever a sectional title register has been closed under subsection (6), the Registrar shall make all such amendments, endorsements and entries on the developer's sectional title deeds and in the registers and records kept by him, as may be necessary to record such cancellation and the reversion of the land in question to the applicable land register, and shall in the manner prescribed cause the developer's title deed referred to in section 12(3)(c) to be revived, or shall issue to the developer a certificate of registered title in the form prescribed under the  Deeds Registry Act for the land in question, subject or entitled to such servitudes, other real rights and conditions (if any) as are still applicable to or in respect of such land.

            (8) A registered sectional plan shall, subject to the provisions of subsection (6) and section 20(15), only be cancelled by an order of court, and the Registrar shall give effect to any such cancellation by making the necessary endorsements and entries in his records, and shall notify the Director, who shall cancel the original sectional plan and the Deeds Registry copy thereof.