Du Rand NO v Faerie Glen Renaissance Scheme (302/08) [2009] ZASCA 122; [2010] 1 All SA 383 (SCA) (28 September 2009)

Du Rand NO v Faerie Glen Renaissance Scheme (302/08) [2009] ZASCA 122; [2010] 1 All SA 383 (SCA) (28 September 2009)

The Supreme Court of Appeal held that the Faerie Glen Renaissance Scheme was developed in compliance with the Pretoria Town-Planning Scheme and the agreements of sale incorporated the requirements of the Retirement Housing Act from inception. The Act applied to the scheme prior to any amendment of management rules. The amendments to rules 1 and 2 merely clarified the existing legal position and did not adversely affect the proprietary rights of the appellants. The respondent was entitled to approach the court for relief under s 1(3A) of the Sectional Titles Act, as it was factually impossible to obtain a unanimous resolution due to the appellants' opposition. The requirements of s 1(3A)...

Citation
[2009] ZASCA 122
Parties
Appellant: Deon du Rand NO; Appellant: André du Rand NO; Appellant: Johan du Rand NO; Appellant: Elizabeth Susanna du Rand NO; Appellant: Elmarie Botes NO; Appellant: F G J Wiid; Respondent: The Faerie Glen Renaissance Scheme
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 September 2009
Case Number
302/08
Procedural Posture
Civil Appeal / Appeal From Pretoria High Court; Judgment Delivered by Supreme Court of Appeal
Outcome
Appeal dismissed with costs.
Judges
Streicher, Lewis, Snyders, Leach, Bosielo
Legal Topics
Sectional Titles Act, Housing Development Schemes for Retired Persons Act, Management Rules Amendment, Proprietary Rights, Unanimous Resolution, Retirement Village Regulation
Land and Property Civil Procedure Sectional Titles Act Housing Development Schemes for Retired Persons Act Management Rules Amendment Proprietary Rights Unanimous Resolution Retirement Village Regulation

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Parties

Deon du Rand NO

Appellant

André du Rand NO

Appellant

Johan du Rand NO

Appellant

Elizabeth Susanna du Rand NO

Appellant

Elmarie Botes NO

Appellant

F G J Wiid

Appellant

The Faerie Glen Renaissance Scheme

Respondent

Procedural Posture

Civil Appeal / Appeal From Pretoria High Court; Judgment Delivered by Supreme Court of Appeal

Legal Issues

  1. 1 Whether the Housing Development Schemes for Retired Persons Act 65 of 1988 applies to the Faerie Glen Renaissance Scheme prior to the amendment of management rules.
  2. 2 Whether the amendment of management rules adversely affects the proprietary rights of the appellants as owners, requiring their written consent under the Sectional Titles Act.
  3. 3 Whether the respondent was entitled to approach the court for relief under s 1(3A) of the Sectional Titles Act without a unanimous resolution.

Ratio Decidendi

The Supreme Court of Appeal held that the Faerie Glen Renaissance Scheme was developed in compliance with the Pretoria Town-Planning Scheme and the agreements of sale incorporated the requirements of the Retirement Housing Act from inception. The Act applied to the scheme prior to any amendment of management rules. The amendments to rules 1 and 2 merely clarified the existing legal position and did not adversely affect the proprietary rights of the appellants. The respondent was entitled to approach the court for relief under s 1(3A) of the Sectional Titles Act, as it was factually impossible to obtain a unanimous resolution due to the appellants' opposition. The requirements of s 1(3A)...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.