HOA CLAUSE OBLIGING OWNER TO BUILD WITHIN CERTAIN TIME, FAILS
Chapman’s Bay Estate Homeowners’ Association v Lotter and Others (9387/2022)  ZAWCHC 35 (24 February 2023)
‘Khalil Gibran was of the view that “between what is said and not meant, and what is meant and not said, most of love is lost”. This case admittedly has nothing to do with love, but what has been “meant and not said” lies at the core of the dispute.’ With these opening lines, the Court in this matter considered the wording in an HOA constitution which compelled first purchasers of erven in the estate to erect homes on the vacant erven within a certain period, failing which they will become liable for a penalty. However, when the HOA levied such penalty against a subsequent purchaser, it appeared that the import of the text used was that the first purchaser who took transfer from the developer was the one under the obligation and that such obligation did not pass to subsequent purchasers.
Many similar provisions are found in HOA constitutions of residential developments and, in each case, a court will look at exactly what the plain and simple meaning is of the actual words used. What an HOA assumes is the meaning might be very different from the words used. The judgment highlights how important it is to obtain specialist advice when drafting the constitution of an HOA.
GARDEN SERVITUDE MORE THAN A GARDENER’S CAPRICE
Margot Berzack v Huntrex 277 (Case no 210/2021)  ZASCA 17 (21 February 2023)
A praedial servitude, such as a servitude right of way, offers some permanent benefit that serves more than the owner’s personal pleasure or caprice, to the owner of the dominant land over the land of another. Such a servitude is registrable against the title deeds of the land parcels in question and, in principle, lasts in perpetuity. Personal servitudes, on the other hand, grant limited rights to a specific person for the use and enjoyment of another’s property and do not exist longer than the lifetime of the rights holder. The court in this judgment had to decide whether the garden-type servitude right registered by an owner, when subdividing and selling off part of her property, over that portion of the subdivided property to where her garden extended, was personal or praedial in nature. It was a win for the green fingered servitude holder and her successors in title. The judgment is also a valuable read to learn how courts approach the question of determining the nature of a servitude and hence the consequences that flow therefrom.