Rauch and Another v Registrar of Deeds, Cape Town and Others (13312/2021) [2022] ZAWCHC 61 (28 April 2022)

Rauch and Another v Registrar of Deeds, Cape Town and Others (13312/2021) [2022] ZAWCHC 61 (28 April 2022)

The court found, on a balance of probabilities, that the right to exclusive use of parking bay 19, originally allocated to Unit 11 by the 1983 rules, was subsequently transferred by the owner of Unit 11 to the owner of Unit 7, either expressly or tacitly. This conclusion was supported by decades of consistent use,...

Source-derived case information.

Citation
[2022] ZAWCHC 61
Parties
Applicant: Guido Baruch Schrage Rauch; Applicant: Mave Cathleen Samoon; Respondent: Registrar of Deeds, Cape Town; Respondent: The Folrentia Body Corporate; Respondent: Xandra Bolliger
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
28 April 2022
Case Number
13312/2021
Procedural Posture
Civil Application / Final Judgment After Opposed Motion
Outcome
Application granted. Declaratory relief in favour of the applicants. Costs awarded as specified.
Judges
Rogers
Legal Topics
Sectional Title Rules, Exclusive Use Rights, Servitude Transfer, Prescription Act, Body Corporate Management
Land and Property Civil Procedure Sectional Title Rules Exclusive Use Rights Servitude Transfer Prescription Act Body Corporate Management

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Parties

Guido Baruch Schrage Rauch

Applicant

Mave Cathleen Samoon

Applicant

Registrar of Deeds, Cape Town

Respondent

The Folrentia Body Corporate

Respondent

Xandra Bolliger

Respondent

Procedural Posture

Civil Application / Final Judgment After Opposed Motion

Legal Issues

  1. 1 Whether the owner of Unit 11 holds the right to the exclusive use of parking bay 19.
  2. 2 Whether the second respondent acquired or holds the right to the exclusive use of parking bay 19.
  3. 3 Whether the applicants, as owners of Unit 7, are entitled to exercise the right to exclusive use of parking bay 19.

Ratio Decidendi

The court found, on a balance of probabilities, that the right to exclusive use of parking bay 19, originally allocated to Unit 11 by the 1983 rules, was subsequently transferred by the owner of Unit 11 to the owner of Unit 7, either expressly or tacitly. This conclusion was supported by decades of consistent use, payment of levies by Unit 7's owners, and the absence of any claim or use by Unit 11's owners. The court held that the formalities in rule 73(6) are post-disposal procedures and not prerequisites for a valid transfer. The allocation in the rules may cease to be applicable where the rules themselves permit disposal. The respondent's reliance on the original allocation was...

Court Disposition

Application granted. Declaratory relief in favour of the applicants. Costs awarded as specified.

Orders

  • It is declared that the owner of Unit 11 does not hold the right to the exclusive use of parking bay 19.
  • It is declared that the second respondent did not acquire and does not have the right to the exclusive use of parking bay 19.