Some homes in Chapman’s Bay Estate. Picture: Supplied
Cape Town - The Chapman’s Bay Estate Homeowners’ Association has lost its application to review and set aside an adjudication order by dispute resolution resource the Community Schemes Ombud Service (CSOS) on levies that the association imposed on a property.
The original complaint at CSOS had been lodged by homeowner Willem Lötter, who purchased a vacant property in the estate and took transfer in January 2021.
The property had originally first been transferred from the developer of the estate in August 2017 under an agreement with the association that imposed a penalty levy if a dwelling on the property was not completed within three years from date of transfer of the property from the developer.
The clause states that construction must be completed within one year from the date of commencement unless an extended time period is approved “due to the complexity of the dwelling”.
The association argued that the period within which construction is required to commence and be completed in terms of the clause is calculated from the date of first transfer of the property from the developer and that it is for the purchaser of a property that is subject to a penalty levy to negotiate a reduced purchase price.
In the case of the property in question, neither the first purchaser, nor any of the successive purchasers except for Lötter commenced with construction on the property.
In the ruling, acting Judge Susan van Zyl said Lötter was made aware of the implications of the clause prior to purchasing his property in the estate and had mentioned at a hearing of the matter that the seller refused to agree to a reduced purchase price.
The judge said Lötter started with the development of his property shortly after the transfer and it has since been completed.
She said Lötter was, nevertheless, charged penalty levies worth R58 905 because the first owner of the property had failed to develop the property within three years of transfer.
Judge Van Zyl said: “It is important to point out that Lötter was not required to pay any levies inherited from the previous owner. Those levies had been paid up. The levies required from Lötter were imposed afresh on the basis of the association’s interpretation of the provisions of the clause.”
Fourteen months after taking transfer, Lötter applied to CSOS for an order that the association “be stopped from enforcing penalty levies on new owners who have made every effort to develop their property expeditiously”.
CSOS granted the order in May 2022, but the association took the matter to the high court, where the judge ordered the association to desist from imposing penalty levies, in terms of clause 9.10 of its constitution, on any owners in the estate other than those who took transfer of their properties.
The order was granted with immediate effect.
mwangi.githahu@inl.co.za