Biccari and Another v Body Corporate of Shoreham and Others (8961/2015) [2018] ZAWCHC 2; [2018] 2 All SA 36 (WCC); 2018 (3) SA 462 (WCC) (24 January 2018)

Biccari and Another v Body Corporate of Shoreham and Others (8961/2015) [2018] ZAWCHC 2; [2018] 2 All SA 36 (WCC); 2018 (3) SA 462 (WCC) (24 January 2018)

The court found that only those respondents who could produce valid certificates issued in accordance with management rule 52, or who could demonstrate that such certificates had been issued and subsequently lost, were entitled to rights of exclusive use over the parking bays allocated to them. The management rules required a written deed of cession and the issuance of a certificate for the transfer of exclusive use rights. The fourth, seventh, fourteenth, eighteenth, and nineteenth respondents satisfied these requirements. The remaining opposing respondents failed to provide evidence of valid cession or certificates and thus did not acquire exclusive use rights. In terms of section...

Citation
[2018] ZAWCHC 2
Parties
Applicant: Teresa Angela Biccari; Applicant: Daniela Adriana Giuricich; Respondent: Body Corporate of Shoreham; Respondent: The Registrar of Deeds; Respondent: Fourth to Forty Eighth Respondents
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
24 January 2018
Case Number
8961/2015
Procedural Posture
Civil Application / Judgment After Hearing of Main Application and Counterapplication
Outcome
The application is dismissed with costs. The fourth, seventh, fourteenth, and eighteenth respondents are declared holders of exclusive use rights to their allocated parking bays. The first respondent is directed to issue replacement certificates to the fourth, seventh, and eighteenth respondents. The...
Judges
JH Loots
Legal Topics
Sectional Titles Act, Exclusive Use Areas, Management Rules, Deed of Cession, Common Property, Costs Orders
Land and Property Civil Procedure Sectional Titles Act Exclusive Use Areas Management Rules Deed of Cession Common Property Costs Orders

Case Brief

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Parties

Teresa Angela Biccari

Applicant

Daniela Adriana Giuricich

Applicant

Body Corporate of Shoreham

Respondent

The Registrar of Deeds

Respondent

Fourth to Forty Eighth Respondents

Respondent

Procedural Posture

Civil Application / Judgment After Hearing of Main Application and Counterapplication

Legal Issues

  1. 1 Whether the opposing respondents acquired valid rights of exclusive use over certain parking bays in the Shoreham sectional title scheme.
  2. 2 Whether the applicants are entitled to a declaration that the parking bays constitute common property available for use by all unit owners.
  3. 3 Whether certificates and deeds of cession were properly issued and transferred in accordance with the management rules and applicable legislation.

Ratio Decidendi

The court found that only those respondents who could produce valid certificates issued in accordance with management rule 52, or who could demonstrate that such certificates had been issued and subsequently lost, were entitled to rights of exclusive use over the parking bays allocated to them. The management rules required a written deed of cession and the issuance of a certificate for the transfer of exclusive use rights. The fourth, seventh, fourteenth, eighteenth, and nineteenth respondents satisfied these requirements. The remaining opposing respondents failed to provide evidence of valid cession or certificates and thus did not acquire exclusive use rights. In terms of section...

Court Disposition

The application is dismissed with costs. The fourth, seventh, fourteenth, and eighteenth respondents are declared holders of exclusive use rights to their allocated parking bays. The first respondent is directed to issue replacement certificates to the fourth, seventh, and eighteenth respondents. The...

Orders

  • The application is dismissed, with costs.
  • The fourth, seventh, fourteenth and eighteenth respondents are declared to be the holders of rights of exclusive use to the parking bays allocated to them.