Cowin NO and Others v Kyalami Estate Homeowners Association and Others (12/11377) [2013] ZAGPJHC 121 (25 February 2013)

Cowin NO and Others v Kyalami Estate Homeowners Association and Others (12/11377) [2013] ZAGPJHC 121 (25 February 2013)

The court held that the condition in the title deed requiring a clearance certificate from the homeowners association is a real right, not a personal right, and is enforceable against all successors in title, including liquidators. The First Respondent, while remaining a concurrent creditor in the insolvent estate, is entitled to exercise its real right to require payment of amounts due before transfer of the property. The Registrar of Deeds cannot register transfer without compliance with the condition, and disregarding this requirement would result in arbitrary deprivation of property, contrary to Section 25 of the Constitution. The application to declare the condition unenforceable...

Citation
[2013] ZAGPJHC 121
Parties
Applicant: Monica Gezina Cowin N.O.; Applicant: Oriel Rampolokeng Sekati N.O.; Applicant: Silver Tunnel Investments 7 (Pty) Limited (In Liquidation); Respondent: Kyalami Estate Homeowners Association; Respondent: Kyalami Equestrian Centre CC; Respondent: Master of the High Court; Respondent: Registrar of Deeds, Pretoria
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
25 February 2013
Case Number
12/11377
Procedural Posture
Urgent Application / Application for Declaratory Relief and Orders Regarding Title Deed Conditions and Insolvency
Outcome
Application dismissed with costs, including costs of two counsel.
Judges
Mashile
Legal Topics
Insolvency Act Section 89, Real Vs Personal Rights, Title Deed Conditions, Clearance Certificate Requirement, Concurrent Creditor Status, Arbitrary Deprivation of Property
Land and Property Civil Procedure Insolvency Act Section 89 Real Vs Personal Rights Title Deed Conditions Clearance Certificate Requirement Concurrent Creditor Status Arbitrary Deprivation of Property

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 7 Authorities cited 13 Party arguments 2
Sign in to unlock

Parties

Monica Gezina Cowin N.O.

Applicant

Oriel Rampolokeng Sekati N.O.

Applicant

Silver Tunnel Investments 7 (Pty) Limited (In Liquidation)

Applicant

Kyalami Estate Homeowners Association

Respondent

Kyalami Equestrian Centre CC

Respondent

Master of the High Court

Respondent

Registrar of Deeds, Pretoria

Respondent

Procedural Posture

Urgent Application / Application for Declaratory Relief and Orders Regarding Title Deed Conditions and Insolvency

Legal Issues

  1. 1 Is the condition in the title deed of the Third Applicant enforceable only against the Third Applicant, or is it a real right binding successors in title.
  2. 2 Should the First Respondent be regarded as a concurrent creditor in the insolvent estate of the Third Applicant.
  3. 3 Should the Registrar of Deeds register transfer of the property without a clearance certificate from the First Respondent, despite the title deed condition.

Ratio Decidendi

The court held that the condition in the title deed requiring a clearance certificate from the homeowners association is a real right, not a personal right, and is enforceable against all successors in title, including liquidators. The First Respondent, while remaining a concurrent creditor in the insolvent estate, is entitled to exercise its real right to require payment of amounts due before transfer of the property. The Registrar of Deeds cannot register transfer without compliance with the condition, and disregarding this requirement would result in arbitrary deprivation of property, contrary to Section 25 of the Constitution. The application to declare the condition unenforceable...

Court Disposition

Application dismissed with costs, including costs of two counsel.

Orders

  • The application is dismissed with costs.
  • Such costs to include those of two counsel.