Brief Summary

Property Law — Sectional Title — Exclusive use of common property — Dispute over parking bay allocation in sectional title scheme — Applicants claimed exclusive use of parking bay 19 based on historical usage and levy payments — Respondent's ownership of unit allocated to parking bay 19 contested — Court held that the rules adopted in 1983 allocated parking bay 19 to the respondent's unit, and no evidence supported the applicants' claim of exclusive use rights.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings took the form of an application for declaratory relief and consequential relief concerning the entitlement to the exclusive use of a parking bay in a sectional title scheme. The dispute was framed as a conflict between two sets of sectional owners over the right to use parking bay 19 (PB19) at the sectional title scheme known as Florentia in Bantry Bay, Cape Town.

The applicants were Mr Guido Baruch Schrage Rauch and Ms Maeve Cathleen Samoon, who jointly owned Unit 7 in Florentia. The principal opposing party was Ms Xandra Bolliger, the owner of, inter alia, Unit 11 (and also Units 2 and 17). Although the notice of motion cited multiple respondents, the judgment treated Ms Bolliger as the respondent opposing the substantive relief. The Registrar of Deeds, Cape Town and the Florentia Body Corporate were also cited.

The procedural history included a late interlocutory dispute about a postponement. Shortly before the hearing, the applicants sought a postponement to conduct further deeds office investigations and to amend their notice of motion, tendering wasted costs. Ms Bolliger consented to the amendment but opposed the postponement. The applicants then filed a supplementary affidavit reflecting the results of further investigations and proposed a further amendment, again tendering wasted costs if postponement was required. At the hearing, Ms Bolliger did not object to the new affidavit or further amendment and did not seek leave to answer. The court expressed a provisional view against postponement; the applicants did not persist, and the matter proceeded to argument on the merits.

The subject-matter of the dispute was the legal status and allocation of an exclusive-use parking bay within a sectional title scheme whose rules were adopted under the Sectional Titles Act 66 of 1971, and how those rules interacted with decades of actual use, levy charging, and subsequent transfers of ownership.

2. Material Facts

Florentia’s sectional title register was opened in August 1982 under the (now repealed) Sectional Titles Act 66 of 1971. The scheme comprised 29 sections, including flats, garages, storerooms, and domestic quarters. In addition to individually owned garage sections, part of the common property on basement and ground levels was set aside for use as parking bays. PB19 was one such parking bay located on common property.

At the inaugural meeting of the body corporate on 14 March 1983, the body corporate adopted new substitute Schedule 1 and Schedule 2 rules (replacing the default rules). Rule 73 of the substitute Schedule 1 rules allocated identified parking bays for the exclusive use of identified sections, by reference to a delineating plan (the PB plan) attached to the rules. The PB plan and the table replicated at the end of rule 73 allocated PB19 to Unit 11, and no parking bay was allocated to Unit 7. The new rules were notified to the Registrar and were recorded as substituted on 8 July 1983, rendering them operative in terms of section 27 of the 1971 Act.

The court treated it as probable (and accepted by counsel for both sides) that, in March 1983, the then owners of Units 7 and 11 (acting through proxies) were aware that the substituted rules allocated PB19 to Unit 11 and allocated no parking bay to Unit 7. No drafting error in rule 73 or the PB plan was alleged.

The critical factual controversy was how PB19 came, in practice, to be used and treated thereafter. The evidence relied upon by the court showed that by December 1984 the owner of Unit 7 (then Mrs Stella Lipsitz) was being charged and was paying levies attributable to PB19, while the owner of Unit 11 (then Mrs Marion Back) was not being charged levies for PB19. This emerged from trustee meeting minutes and a handwritten levy schedule recording levies for Unit 7 including PB19, contrasted with Unit 11 levies that did not include a parking bay levy (while separately reflecting levies for a garage section owned by the same owner).

The applicants’ evidence (from persons with historical involvement) was that from at least 1984, and continuing for decades, PB19 was used exclusively by the owners or tenants of Unit 7, and levies for PB19 were consistently charged to, and paid by, the owner of Unit 7. The court noted that Ms Bolliger did not allege that PB19 had been used by Unit 11’s owners or tenants during the period 1984 to April 2019, nor by anyone other than those associated with Unit 7. Evidence from residents and a former tenant supported the continuous practical association of PB19 with Unit 7, at least from 2004 and from 2012 to 2016 respectively.

Ownership changed over time. Unit 11 remained within the Back family until it was sold by Mr Back to Ms Bolliger in October 2016, with transfer on 1 February 2017. Unit 7 passed from Mrs Lipsitz to Ms Nina Hart (via a testamentary trust administered by Dr Michael Scher), and Ms Hart sold Unit 7 to the applicants in April 2016, with transfer on 5 August 2016. When the applicants purchased Unit 7, they were shown PB19 as the bay accompanying the unit, their deed of sale referred to a “covered parking bay” as an exclusive use area linked to Unit 7, and they were levied for PB19 after transfer.

A dispute emerged in April 2019, when Ms Bolliger asserted the right to use PB19 by relying on rule 73’s allocation of PB19 to Unit 11. The applicants then sought a declaration that Unit 7, not Unit 11, held the exclusive use right to PB19.

A further factual inference relied upon by the court concerned Ms Bolliger’s purchase of Unit 11. Ms Bolliger did not produce her deed of sale, but her counsel accepted that the court could infer that the deed of sale did not identify any parking bay as linked with Unit 11. The court also treated as significant that Ms Bolliger did not assert a claim to PB19 upon taking occupation in February 2017, only doing so in April 2019.

3. Legal Issues

The central legal question was whether, despite the 1983 substitute rules allocating PB19 to Unit 11, the right to the exclusive use of PB19 had ceased to vest in Unit 11 and had become vested in Unit 7, such that the applicants (as current owners of Unit 7) were entitled to exercise that right and exclude Ms Bolliger (as owner of Unit 11) from PB19.

This required determination of an issue that principally involved the application of law to fact, namely whether the proven long-term pattern of use and levy treatment, viewed against the wording and structure of rule 73 (including rule 73(6) permitting disposal of exclusive use rights), justified the inference that the Unit 11 owner had disposed of the exclusive-use right to PB19 in favour of the Unit 7 owner, whether expressly or tacitly, and what formal consequences (if any) followed from the absence of documentation contemplated by rule 73(6).

The applicants also advanced alternative prescription-based contentions, namely that (a) the Unit 11 owner’s right (if it persisted) was extinguished by extinctive prescription under section 7(1) of the Prescription Act 68 of 1969, and (b) that the right was acquired by acquisitive prescription under section 6 of that Act. Those alternatives raised legal characterisation issues about whether a rule-based exclusive use right constituted a “servitude” for purposes of sections 6 and 7, and whether it was personal or praedial, as well as a standing point raised by Ms Bolliger. However, the court treated these as unnecessary to decide once it resolved the matter on the disposal/waiver inference.

4. Court’s Reasoning

The court approached the matter by first locating the governing normative framework in the 1983 substitute rules, adopted under the 1971 Act and duly recorded, and continuing in force through subsequent legislative changes by operation of the transitional provisions referenced in the judgment. The court accepted that rule 73 as adopted in March 1983 allocated PB19 to Unit 11, and it accepted that this was known at the time and not attributable to a drafting mistake.

The court then focused on the practical history of PB19’s use and financial treatment. It regarded as weighty the fact that, by at least December 1984, levies for PB19 were being charged to, and paid by, the Unit 7 owner, and that this levy treatment persisted for decades. The court considered this consistent with PB19 being treated, in effect, as attached to Unit 7 rather than Unit 11. It also considered the long, undisturbed use of PB19 by Unit 7 owners and tenants (and the absence of any claim or competing use by Unit 11’s owners) as important context supporting an inference that the allocation contemplated by rule 73’s original table was no longer operative in practice.

A key element of the court’s reasoning was the interpretation and effect of rule 73(6), which expressly permitted an owner to dispose of the rights of exclusive use to a parking bay, subject to certain conditions and post-disposal steps. The applicants relied on rule 73(6) to support the inference that the Unit 11 owner must, at some stage after March 1983 and before December 1984, have transferred the exclusive-use right to PB19 to the Unit 7 owner. The court noted that the documents contemplated by rule 73(6) were not produced and acknowledged that their absence could mean either that no disposal occurred or that documents were never created or had been lost.

On the applicants’ submission that the formalities in rule 73(6) were not prerequisites for validity but rather post-disposal procedures, the court accepted that this was supported by the language of the rule (“Upon disposing ...”) and by commercial sense. The court considered it significant that the notification obligation is imposed on the disposer, and that it would be unfair if the disposer’s failure to comply prejudiced the acquirer.

The court evaluated the alternative explanation advanced for Ms Bolliger, namely that PB19 might have been used by Unit 7 on the basis of permission from Unit 11’s owners in exchange for Unit 7 paying the levies. The court found two considerations militated against this. First, the evidence from Dr Scher (who administered Unit 7 for a prolonged period) was treated as irreconcilable with a mere permissive arrangement; he clearly understood the right to vest in Unit 7 and acted consistently with that belief, including the inclusion of an exclusive-use parking bay in the deed of sale to the applicants. Second, the court considered it improbable that Unit 11’s seller believed PB19 formed part of Unit 11’s rights, given that Ms Bolliger’s deed of sale apparently did not include a parking bay and she did not assert a claim upon occupation in 2017. The court treated those features as supporting the inference that neither seller nor buyer understood PB19 to be attached to Unit 11 at the time of sale.

Although the court criticised the applicants for not filing an affidavit from Mr Back, it observed that he was equally available to both sides, and that Ms Bolliger herself might have been expected to procure his evidence if he could support her position. In circumstances where the applicants’ evidence made it unlikely that the Back family believed PB19 remained vested in Unit 11, the court did not treat the absence of his affidavit as determinative against the applicants.

The court acknowledged a conundrum in the evidence: Dr Scher’s statement suggested Unit 7 had used PB19 since 1975, which made it difficult to understand why the 1983 rule allocated PB19 to Unit 11. Nonetheless, the court held that, whatever the explanation for that inconsistency, the overall body of evidence established, on a balance of probabilities, that the right allocated to Unit 11 in 1983 was soon thereafter surrendered to Unit 7’s owner.

The court reasoned that such surrender could have occurred by an express agreement, but it also accepted the possibility of a tacit agreement inferred from the parties’ conduct. In support of that approach, it invoked principles from cases dealing with the tacit abandonment (waiver) of servitudes, emphasising that rights may be lost by conduct plainly inconsistent with an intention to enforce them. The court treated these principles as analogous and supportive of the conclusion that the Unit 11 owner had, by acquiescence in a longstanding inconsistent arrangement and by the scheme’s financial practices, abandoned or transferred the practical benefit of the exclusive-use entitlement.

The court also addressed the possible objection that a transfer of PB19’s exclusive-use entitlement would have required an amendment of the rules because the PB plan and allocation table still reflected PB19 as attached to Unit 11. The court rejected this as a necessary requirement on the facts, reasoning that rule 73 itself contemplated disposals that could render the original allocation table inapplicable, and the rule did not require an amendment upon disposal. The court briefly noted that an estoppel issue might have arisen in different circumstances (for example, if Ms Bolliger had purchased Unit 11 in a genuine belief, induced by the rules, that PB19 attached to Unit 11), but stated that those were not the facts, since when the parties bought in 2016 nobody (including Ms Bolliger) believed PB19 was attached to Unit 11.

Having reached this conclusion, the court found it unnecessary to decide the alternative prescription arguments, and it expressly noted that deciding them would have required engagement with issues concerning the characterisation of exclusive use rights and standing.

5. Outcome and Relief

The court granted declaratory relief confirming that the owner of Unit 11 did not hold the right to the exclusive use of PB19, that Ms Bolliger did not acquire and did not have such a right, and that the owner of Unit 7 was the holder of the right and that the applicants, as current owners of Unit 7, were entitled to exercise it.

The court ordered Ms Bolliger to remove, within one week, any vehicle parked by her or her tenant in PB19.

On costs, the court ordered Ms Bolliger to pay the applicants’ costs of suit, subject to a qualification: the applicants were ordered to pay Ms Bolliger’s costs of opposing the applicants’ application for a postponement dated 13 April 2022.

Cases Cited

Vermeulen’s Executrix v Moolman 1911 AD 384.

Margate Estates Ltd v Urtel (Pty) Ltd 1965 (1) SA 279 (N).

Laws v Rutherford 1924 AD 261.

Pickard v Stein [2014] 3 All SA 631 (GJ).

M v M [2020] ZAGPPHC 155.

Legislation Cited

Sectional Titles Act 66 of 1971.

Sectional Titles Act 95 of 1986.

Sectional Titles Management Act 8 of 2011.

Act 44 of 1997.

Prescription Act 68 of 1969.

Rules of Court Cited

Uniform Rules of Court, Rule 35(12).

Held

The court held, on the probabilities arising from the long-term exclusive use of PB19 by Unit 7’s owners and tenants, the consistent levy charging and payment in respect of PB19 by Unit 7, and the absence of any contemporaneous assertion of entitlement by Unit 11’s owners (including at the point of sale to Ms Bolliger), that the exclusive-use entitlement to PB19 that had initially been allocated to Unit 11 under the 1983 rules had been disposed of or surrendered to Unit 7’s owner, whether by express agreement or by tacit agreement inferred from conduct.

The court further held that the absence of documentation contemplated by rule 73(6) did not preclude the inference of a valid disposal, and that rule 73 did not require an amendment to the rules to give effect to such a disposal. As a result, Ms Bolliger did not hold and did not acquire an exclusive-use right to PB19, and the applicants, as owners of Unit 7, were entitled to exercise the exclusive-use right and to have vehicles removed from PB19.

LEGAL PRINCIPLES

The judgment applied the principle that where scheme rules confer an exclusive-use entitlement and also permit its disposal, a court may infer from established patterns of conduct and financial treatment that the entitlement was in fact disposed of or surrendered, even if historical documentation is unavailable, particularly where the evidence supports a longstanding and consistently implemented arrangement inconsistent with the original allocation.

In interpreting rule-based procedural steps linked to disposal, the judgment applied the principle that wording indicating post-disposal obligations (such as “upon disposing”) may support the conclusion that such steps are not necessarily conditions precedent to the validity of the disposal, especially where the obligation rests on the disposer and where commercial fairness indicates that the acquirer should not be prejudiced by the disposer’s omission.

By analogy to servitude jurisprudence, the judgment applied the principle that a right may be tacitly abandoned or waived through conduct plainly inconsistent with an intention to enforce it, including acquiescence in arrangements necessarily obstructive of the right’s exercise over an extended period. The court used this analogy to support the inference of a tacit agreement or surrender of an exclusive-use entitlement within the sectional title context.

The judgment also applied the principle that where governing rules contemplate disposals that may render a recorded allocation table outdated, the absence of a formal rule amendment does not necessarily negate the legal effect of a disposal, if the scheme’s rules do not require amendment as a condition of such disposal and the factual matrix supports the conclusion that the disposal was implemented in practice.

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