By Auren Freitas dos Santos
On 22 August 2025, the Mpumalanga Division of the High Court set aside a prior order that had allowed the respondents to file “replacement plans” in respect of a real right of extension in a sectional title scheme. The order that was overturned had been granted by the court a quo, which permitted the respondents — who had acquired the real right of extension by notarial cession from the original developer — to submit replacement documentation under Regulation 25A of the Sectional Titles Regulations.
The High Court found that the respondents could not demonstrate that the original plans required under section 25(2) of the Sectional Titles Act 95 of 1986 had ever been filed in the deeds office. In other words, the court a quo had allowed the filing of replacement plans despite the absence of evidence that any original plans had existed.
The Core Issue
The respondents had acquired a real right of extension from the scheme’s developer and sought to file “replacement” documentation after discovering that the deeds office file did not contain the original section 25(2) plans.
What Section 25(2) Requires
Section 25(2) of the Sectional Titles Act 95 of 1986 sets out the documents that must accompany an application by a developer to reserve a real right of extension. These include:
- To-scale building plans showing the proposed structures;
- Elevations and exterior treatments to illustrate how new buildings will look;
- Schedules of participation quotas to indicate how the new sections will impact the overall scheme;
- Details of construction materials and any substantial differences from existing structures; and
- Other prescribed particulars that allow for proper assessment of the proposed development.
The purpose of these requirements is to inform existing owners and the body corporate of potential future developments, ensuring transparency, enabling owners to anticipate impacts on their use and enjoyment of the scheme, and providing a basis for proper oversight. Without these documents, owners cannot meaningfully assess or challenge the exercise of a real right of extension. These plans are not optional: they must, by law, accompany the registration of any right of extension.
Section 25(2A) and Regulation 25A
Section 25(2A) allows for the replacement of plans and documents that were originally filed under section 25(2) but have been lost or destroyed.
Regulation 25A provides the procedural framework for such replacements. It allows the body corporate, or if none exists, the developer, to apply to the Registrar of Deeds to file replacement documentation. Crucially, the replacement plans must reflect as nearly as possible the original plans that were lost or destroyed. Regulation 25A cannot be used to introduce new plans for rights that were never properly lodged — it is strictly a remedial measure to restore lost documentation.
Why This Matters in the Current Case
In this matter, the High Court found that the respondents could not prove the original plans had ever been lodged. Earlier correspondence even showed that the respondents had acknowledged no plans had been submitted. Consequently, the High Court found that the respondents could not rely on section 25(2A) or Regulation 25A to file replacement plans, because those provisions apply only where plans were previously filed and then lost or destroyed, not where no plans existed.
Why This Matters in Practice
The judgment exposes a recurring problem in practice: developers sometimes register real rights of extension without filing the detailed plans and particulars required by section 25(2). Years later, when those rights are ceded, sold, or exercised, owners and bodies corporate are confronted with unexpected construction that directly affects their use and enjoyment of the scheme.
Critically, the Court confirmed that:
- The mere registration of a certificate of real right does not constitute proof that the necessary supporting documents were filed.
- Before accepting or opposing the exercise of such rights, parties must interrogate the deeds office file to ensure the statutory requirements were complied with.
- Replacement provisions (Regulation 25A) cannot be abused to create documents retrospectively where they were never lodged.
Real-Life Consequences
For trustees and owners, the implications of non-compliance with section 25(2) are serious. A new block of sections could suddenly appear adjacent to an existing unit, bringing noise, dust, loss of views, increased levies, and additional strain on common facilities. Without the safeguards of section 25(2), owners have little advance notice or ability to anticipate these impacts.
For prospective purchasers or cessionaries of real rights of extension, the risk is equally stark: acquiring a “right” that was never properly constituted in the first place could render the investment worthless.
The Takeaway
A registered real right of extension does not automatically mean that all the legal requirements have been met. Too often, developers proceed without filing the full set of documents required under section 25(2) of the Sectional Titles Act. If trustees, owners, or purchasers of rights don’t check the file, unlawful extensions could slip through — with real consequences for everyone in the scheme.
So what should you do if you want to acquire or challenge a real right of extension?
The first step is to carefully inspect the deeds office file. Obtaining the sectional title scheme’s deeds office file is essential to confirm that all documents required under section 25(2) are present. These include to-scale building plans, elevations and exterior treatments, schedules of participation quotas, and details of construction materials.
It is important to treat the certificate of real right with caution. The mere registration of such a certificate does not guarantee that the supporting documentation was properly lodged. Always verify that the underlying plans and particulars are on record before proceeding.
If any prescribed documents are missing, action should be taken immediately. The validity of the registered right may be open to question, as Regulation 25A only allows for the replacement of previously lodged plans that have been lost or destroyed; it cannot be used to introduce plans that were never filed.
Consider also the practical implications of the exercise of a right of extension. Unchecked developments may materially affect privacy, access, parking, views, levies, and the use of common property. Trustees and owners should therefore object to any attempt to exercise a right of extension that lacks proper documentation before construction begins. Prospective cessionaries or acquirers of such rights should insist on proof of compliance before committing to any transaction.
Bottom Line
The existence of a registered real right of extension must never be accepted at face value. Proper due diligence requires scrutiny of the deeds office file to ensure that the documents and plans contemplated in section 25(2) are indeed on record. Absent such compliance, the exercise of the right may be vulnerable to challenge, and its consequences could be far-reaching for all stakeholders in the scheme.
Specialist Community Scheme Attorney (LLB, LLM), Auren Freitas dos Santos, is a Director of The Advisory, a boutique consultancy specialising exclusively in community schemes law. Reach out to him via email at info@theadvisory.co.za for a no-obligation quote to discuss this topic in more detail.
