Essack N.O v Thangavelu (D9022/2007) [2023] ZAKZDHC 26 (27 March 2023)

Essack N.O v Thangavelu (D9022/2007) [2023] ZAKZDHC 26 (27 March 2023)

The court found that the applicant did not acquire the right of exclusive use of parking bay P20 upon purchasing flat 105, as no notarial deed of cession was executed or registered in its favour. The transfer of exclusive use rights over common property requires compliance with the Sectional Titles Act, specifically registration by notarial deed of cession. The evidence showed that Mr Botha, the previous owner, only validly transferred P20 to the respondent through a registered notarial deed after the delineation of parking bays. Any purported transfer of P20 to the applicant was void, as neither the conveyancing attorney nor the registrar of deeds effected a valid cession. The...

Citation
[2023] ZAKZDHC 26
Parties
Applicant: Yusuf Mohammed Essack N.O; Respondent: Vino Adams Thangavelu
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
27 March 2023
Case Number
D9022/2007
Procedural Posture
Civil Application / Judgment
Outcome
The applicant's claim is dismissed with costs.
Judges
Msiwa
Legal Topics
Sectional Titles Act, Exclusive Use Rights, Notarial Deed of Cession, Deeds Registry, Alienation of Land Act
Land and Property Civil Procedure Sectional Titles Act Exclusive Use Rights Notarial Deed of Cession Deeds Registry Alienation of Land Act

Case Brief

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Parties

Yusuf Mohammed Essack N.O

Applicant

Vino Adams Thangavelu

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the applicant acquired the right of exclusive use of parking bay P20 upon purchasing flat 105.
  2. 2 Whether the absence of a notarial deed of cession invalidates the applicant's claim to exclusive use rights over P20.
  3. 3 Whether the respondent is the lawful holder of exclusive use rights to P20 as registered in the deeds registry.

Ratio Decidendi

The court found that the applicant did not acquire the right of exclusive use of parking bay P20 upon purchasing flat 105, as no notarial deed of cession was executed or registered in its favour. The transfer of exclusive use rights over common property requires compliance with the Sectional Titles Act, specifically registration by notarial deed of cession. The evidence showed that Mr Botha, the previous owner, only validly transferred P20 to the respondent through a registered notarial deed after the delineation of parking bays. Any purported transfer of P20 to the applicant was void, as neither the conveyancing attorney nor the registrar of deeds effected a valid cession. The...

Court Disposition

The applicant's claim is dismissed with costs.

Orders

  • The applicant's claim to exclusive use rights over parking bay P20 is dismissed.
  • The applicant is ordered to pay the costs of the respondent.