- The Supreme Court of Appeal confirmed that a flat owner may only extend a sectional title unit if a formal special resolution is properly passed in accordance with the law.
- Informal meetings and adopted minutes do not constitute valid approval for alterations to common property.
- Courts will not issue interdicts or declarations where statutory procedures have not been followed.
The dispute arose at Merriman Court, a small sectional title scheme in Green Point, Cape Town, comprising six residential units. Johannes Wessel Greeff owns the smallest unit, with exclusive use of an adjoining garden. He is the only owner who has not extended into common property.
Historically, owners managed alterations informally. Over time, other owners extended their sections into communal areas such as the roof, hallways, and voids beneath the building. Greeff argued he was treated unfairly by being denied the same opportunity.
In 2007, he received what he described as “in principle” approval to construct a garage. In 2013, a further agreement allegedly permitted him to extend his flat, but this was expressly subject to formal plan approval. In 2017, new building plans were discussed at an informal meeting after the scheduled AGM collapsed due to the resignation of the managing agent.
The minutes of the informal meeting recorded that the body corporate “formally accepts the plans,” and the chairperson offered to sign any necessary documents. These minutes were later adopted at the postponed AGM. Greeff treated this as final approval.
However, he subsequently submitted entirely new plans in 2019, proposing a large double-storey extension with a rooftop flatlet, almost doubling the size of his unit and significantly encroaching on the shared garden area. Several owners objected to the scale of the proposal and the lack of clarity regarding its impact on property values and communal space.
A special general meeting in October 2019 ended without a vote. Facing ongoing opposition, Greeff approached the High Court for an order compelling approval.
High Court ruling overturned
The Western Cape High Court initially found in Greeff’s favour, holding that approval had already been granted in 2017 and ordering the body corporate to permit construction.
However, the full bench overturned this decision. The matter was then taken to the Supreme Court of Appeal. The SCA’s central question was whether Greeff ever obtained valid legal approval to extend his unit under the sectional title law.
Judge ED Baartman delivered the judgment, with four judges concurring. The court stressed that extending a sectional unit is not a casual matter; statutory requirements must be met. The Sectional Titles Schemes Management Act mandates a special resolution before an owner may extend into common property, requiring formal notice, proper procedure, and the necessary voting thresholds.
The court rejected the argument that informal practices within a small body corporate could substitute for legal compliance. As the court observed, “The Body Corporate is obliged to act in terms of the law and in the interest of its members.”
The judgment clarified that merely adopting minutes does not transform informal discussions into legally binding decisions. “The adoption only signifies that the minutes reflected correctly the discussion that took place at the informal meeting,” it read.
No proper resolution had ever been passed. The 2013 “approval” was conditional, the 2017 meeting was informal, and the 2019 meeting ended without a vote. There was therefore no legal entitlement to build.
No legal right, no court order
Greeff sought both a declaratory order and a final interdict. The SCA refused both. A court, it held, cannot declare rights that do not exist in law, nor can it compel conduct where the applicant lacks legal entitlement.
As stated in the judgment, “Mr Greeff did not satisfy the requirements for a declaratory order. He did not have a claim. He has failed to demonstrate that he has a clear right to the interdictory relief sought.”
The court also criticised Greeff for failing to address the concerns raised by other owners and for resorting to litigation rather than negotiation. It ruled, “It is now incumbent on him to address the concerns raised by the owners and approach the Body Corporate to consider his responses.”
Greeff also challenged the authority of the body corporate’s lawyers, claiming that legal fees exceeded an internal authorisation limit. The SCA dismissed this argument. The owners had approved a special levy to cover legal costs, and the court held that the body corporate had acted lawfully and was duty-bound to defend its position. The appeal was dismissed with costs, including those of two counsel.
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