- Cape court has ruled that rules giving a single Primavera apartment owner exclusive use of shared spaces were never legally valid. This means he must now share those areas with other residents.
- The owner will have to give up most of the exclusive-use areas but remains responsible for caring for his roof terrace and skylights, while the body corporate will maintain the main roof.
- The judgment also clarifies that levy payments and voting rights must reflect official deeds office records. It urges all sectional title schemes to follow correct legal procedures for exclusive-use rights.
The Western Cape High Court has intervened to resolve a long-standing dispute in the Primavera Sectional Title Scheme, a residential complex in Cape Town where one owner had been granted private use of several shared spaces for years.
Michael Adrian Patrick Godby bought his unit in 2006, relying on 1990 rules to use a roof terrace, parking bay, storeroom, and cupboard under the stairs. For nearly 20 years, he benefited while other owners paid for these through their levies.
Acting Judge E Jonker ruled the rules were never legal. The law requires formal registration at the deeds office for private rights to shared spaces. Handwritten notes and informal agreements are invalid.
“Resolutions and arrangements, however well-intentioned, cannot create legally enforceable exclusive use rights without full compliance with the law,” the judgment stated.
The court ordered Godby to leave the parking bay, storeroom, and cupboard within 30 days. He loses access to these but keeps and must now maintain his roof terrace.
Who pays for what
The judgment also cleared up responsibility for maintenance. The body corporate must continue looking after the main structure of the roof because it’s common property. However, Godby, as the unit owner, must pay for the upkeep of his terrace and the skylights that only serve his unit.
Another important issue was how levies are calculated. Godby said his share had changed over the years, but the court confirmed that only the official figures at the deeds office matter. For his unit, the participation quota is 0.320, and that figure decides his share of levies and voting rights.
A lesson for all sectional schemes
Although the ruling went against him, the judge noted that Godby genuinely believed he had the rights, since the rules were in place long before he moved in and had been allowed to stand for years. To keep things fair, the court said each party must pay its own legal costs.
The court also urged the Primavera body corporate and its members to fix the situation properly by using the correct legal process under the Sectional Titles Schemes Management Act. That way, everyone knows exactly what their rights and responsibilities are, and future disputes can be avoided.
Conviction.co.za
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