Cowin N.O. and Others v Kyalami Estate Homeowners Association and Others (499/2013) [2014] ZASCA 221 (12 December 2014)

Cowin N.O. and Others v Kyalami Estate Homeowners Association and Others (499/2013) [2014] ZASCA 221 (12 December 2014)

The Supreme Court of Appeal held that the restrictive title condition in the deed of transfer, which prohibits the transfer of immovable property without a clearance certificate from the homeowners association, constitutes a real right. This right is binding not only on the property owner but also on successors in...

Source-derived case information.

Citation
[2014] ZASCA 221
Parties
Appellant: Monica Gezina Cowin NO; Appellant: Oriel Rampolokeng Sekati NO; Appellant: Silver Tunnel Investments 7 (Pty) Ltd; Respondent: Kyalami Estate Homeowners Association; Respondent: Kyalami Equestrian Centre CC; Respondent: The Master of the High Court; Respondent: The Registrar of Deeds, Pretoria; Respondent: Association of Residential Communities CC; Respondent: National Association of Managing Agents
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
12 December 2014
Case Number
499/2013
Procedural Posture
Civil Appeal / Appeal From South Gauteng High Court, Johannesburg
Outcome
Appeal dismissed with costs, save for the amendment of the order below by deletion of paragraph 36.1.
Judges
Maya, Theron, Saldulker, Mocumie, Gorven
Legal Topics
Real Rights in Land, Title Conditions, Homeowners Association Liabilities, Insolvency Priorities, Clearance Certificates
Land and Property Civil Procedure Real Rights in Land Title Conditions Homeowners Association Liabilities Insolvency Priorities Clearance Certificates

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Parties

Monica Gezina Cowin NO

Appellant

Oriel Rampolokeng Sekati NO

Appellant

Silver Tunnel Investments 7 (Pty) Ltd

Appellant

Kyalami Estate Homeowners Association

Respondent

Kyalami Equestrian Centre CC

Respondent

The Master of the High Court

Respondent

The Registrar of Deeds, Pretoria

Respondent

Association of Residential Communities CC

Respondent

National Association of Managing Agents

Respondent

Procedural Posture

Civil Appeal / Appeal From South Gauteng High Court, Johannesburg

Legal Issues

  1. 1 Does a title condition in a deed of transfer prohibiting transfer of immovable property without a clearance certificate from a homeowners association constitute a real right binding on successors in title, including liquidators?
  2. 2 Are amounts owed by an insolvent property owner to a homeowners association considered 'taxes' under section 89(5) of the Insolvency Act 24 of 1936?
  3. 3 Can liquidators transfer property without complying with the title condition requiring a clearance certificate from the homeowners association?

Ratio Decidendi

The Supreme Court of Appeal held that the restrictive title condition in the deed of transfer, which prohibits the transfer of immovable property without a clearance certificate from the homeowners association, constitutes a real right. This right is binding not only on the property owner but also on successors in title, including liquidators of an insolvent estate. The amounts owed to the association do not qualify as 'taxes' under section 89(5) of the Insolvency Act, as previously determined by the court in Barnard NO v Regspersoon van Aminie en ‘n ander. The liquidators are therefore required to comply with the title condition and cannot transfer the property without obtaining the...

Court Disposition

Appeal dismissed with costs, save for the amendment of the order below by deletion of paragraph 36.1.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.
  • The order of the court below is amended by the deletion of paragraph 36.1.