The owner of a unit in a Cape Town sectional title development scheme has come out on top in a court battle with the body corporate of his apartment block.
This over a R20 increase in the levy raised on the exclusive use balcony areas, which shot up from R3 to R23 a square metre.
Kevin Baxter lodged a dispute with the Community Schemes Ombud Services (CSOS), wanting them to declare that the contribution had been incorrectly determined and was in conflict with the Sectional Titles Schemes Management Act (STSMA).
He also wanted them to direct that the contribution be adjusted to the correct or a reasonable amount, and for all amounts he had paid in excess of the adjusted amount to be credited to his levy account.
The STSMA requires the body corporate to make a policy decision: either the body corporate maintains the exclusive use areas itself and collects the costs of doing so from the owners of the areas, or the trustees amend the conduct rules and make the maintenance and the costs the responsibility of the owners (without the need for a contribution towards maintenance).
As such, the body corporate was prohibited from levying a contribution to defray the cost of maintaining such areas.
When Baxter had no joy with CSOS’ adjudication in the matter, he took his case to the Western Cape High Court where Judge Ashley Binns-Ward found the adjudicator erred by failing to recognize the effect of the proviso on the determination of the disputed contribution.
Judge Binns-Ward said: “It was not for the adjudicator, nor is it for the court to determine what the adjusted contribution should be.
“It would therefore be inappropriate for us to accede to the appellant’s prayer for the court to direct that the impugned contribution should revert to R3 per square metre.”
He ruled that CSOS’s order was incorrectly determined, in contravention of STSMA, and ordered that the trustees of the sectional title adjust the levy retrospectively to bring it into compliance with the act and gave them 56 calendar days from November 16 to comply.
-Cape Argus
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