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In a November 2023 ruling by the Supreme Court of Appeal, The Body Corporate of Marsh Rose v Steinmuller (149/2022) [2023] ZASCA 143 (2 November 2023), the court reaffirmed the authority of a body corporate to impede property transfers by withholding a levy clearance certificate. This power, enshrined in Section 15B(3)(a)(i)(aa) of the Sectional Titles Act, plays a crucial role in protecting community schemes. This article explores the case’s details, the legal context, and implications for property owners and buyers.
Section 15B(3)(a)(i)(aa) dictates that the Registrar of Deeds cannot register property transfer without a certificate from the body corporate confirming full payment or suitable arrangements. The primary purpose is to safeguard community schemes by ensuring debt recovery from property owners.
Mr. Steinmuller purchased a property in a foreclosure auction, where the conditions of sale made him responsible for charges, including those owed to the body corporate.
The body corporate demanded R312,903.21 before issuing the levy clearance certificate, leading to a dispute resolved through Mr. Steinmuller’s application to compel the body corporate.
The high court ordered the body corporate to issue the certificate but required certain actions, including a security deposit of R250,000 by Mr. Steinmuller.
The full court upheld the high court’s decision, but the SCA ruled in favour of the body corporate, deeming the high court’s order incompetent. There was an emphasis on the body corporate’s incapacity to facilitate property transfer.
The SCA compared Section 15B(3)(a)(i)(aa) to Section 118(1) of the Municipal Systems Act, acknowledging the vital purpose of embargoes in securing debt recovery for bodies corporate.
The SCA affirmed the body corporate’s right to resist transfer until debts are settled, recognizing the protective role of embargoes for community schemes.
The potential for abuse notwithstanding, the SCA emphasized the value of protection for community schemes. Diluting the provision could jeopardize the financial stability of these schemes. While not a preferent claim, the embargo provides leverage for effective debt recovery. Financial institutions are advised to monitor non-payers to prevent complications in foreclosure proceedings.
This case serves as a reminder for property market participants to carefully consider sale conditions and conduct due diligence. Understanding the implications of outstanding debts and the body corporate’s rights is essential for a smooth property acquisition process. The legal landscape supports the notion that the body corporate’s right to safeguard the financial health of community schemes remains a crucial aspect of property transactions.