Besides the advantages of security and lower maintenance and costs, the current duet situation could bring unexpected problems of its own with advertisements of duets “free of levies and no Body Corporates”.
In terms of the provisions of the Namibian Sectional Title Act, duets are basically mini-complexes that are supposed to be run by a body corporate consisting of all the owners in the sectional title scheme (even if there are only two of them).
Once a sectional title register is opened for the duets, the scheme functions in an orderly fashion exactly like sectional title schemes, and owners and occupiers must comply with rules that are simultaneously registered upon opening of the scheme and transfer of the first units. (According to the Act, an original schedule setting out the rules shall accompany the application for the opening of the sectional title register at the Deeds Registry.) These rules govern the day-to-day aspects of living in a sectional title scheme. The common property is controlled by the Body Corporate. Duets are no exception to this rule.
As the case with other “genuine” sectional title schemes, duet owners can currently not register exclusive use areas such as a walled-in garden or an extra parking bay. This means that even though parts of the common property are apparently designated “exclusive use areas”, these can only be considered to be so upon registration and amendment of the existing rules to that extent. The remainder of the grounds, access paths or roads, shared facilities such as security gates, electric fencing and the roofs and exteriors of the residential units form the common property for which owners in the scheme are, strictly speaking, jointly responsible.
Ideally both owners in a duet scheme need to agree and cooperate financially as regards the maintenance of the common property, the exteriors of the buildings and, essentially, to make provision for the payment of taxes towards the local authorities.
- the Act also provides that a judgment creditor (like the local authority) can recover from the owners of sections on a pro-rata basis, in proportion to their prospective quotas, in respect of judgment against the Body Corporate. Therefore, a local authority is empowered to recover any rates and taxes levied by it from the Body Corporate and in default thereof, from the owners on a pro-rata basis.
The best possible way to make provision for the commitment of both owners is to amend the “standard rules” registered against the scheme. Section 27 of the Act authorises owners to put proposed changes to the Body Corporate at a General Meeting, at which owers will be able to discuss the proposed changes before being asked to vote for or against them. To change schedule 1 rules, a unanimous resolution is needed and for schedule 2 rules a special resolution is required.
It happens quite often that one owner decides to sell; he will not be able to give transfer of his property, since there are outstanding taxes payable to the local authority – even though he always made his payments – his neighbour did not! This is often the practice and we are aware of many duet owners who are completely ignorant of their risks in this regard – the best solution ones again – have the rules changed!
In practice, the provisions of the Act are almost never met and many duet owners don’t know what their actual rights and obligations are. In terms of the Sectional Title Act, duet owners cannot just do as they please as regards exterior maintenance, and alterations to their homes or even the installation of outdoor security equipment. This also means that you can find yourself negatively affected by the uncontrolled actions of neighbouring owners.
For example, if I make alterations to my home without permission of the body corporate (the other owner) and without making the necessary changes to the sectional title plan for the scheme, such alterations will in fact be illegal in terms of the Sectional Title Act.
Many will argue that this is only “theory” but the practical implications and repercussions of such alterations should not be overlooked.
Even if the other owner agrees to get the plans changed, this could take a very long time for plans to be drawn up, approvals to be obtained from mortgagees and surveyor general’s office – and much longer than any would-be buyer is prepared to wait!
Be aware that duets are in fact sectional title units, even if they appear to be “freestanding homes”, each set in their “own” garden. This is important because it means that the buyer will in fact be taking transfer only of the interior of his or her duet home, together with an undivided share of the common property (collectively referred to as a Unit) – and ownership will be subject to the Sectional Title Act with it’s rules, levies, the Body Corporate and joint responsibility of owners. This is the law!