The Body Corporate of “The Avenues” v Barney Hurwitz N.O. and Another

The dispute concerned competing claims to exercise the right of extension of a sectional title scheme known as “The Avenues”. The appellant body corporate relied on section 25 of the Sectional Titles Act 95 of 1986, while the respondents, trustees of the developer trusts, relied on rule 77 of the scheme adopted under the repealed Sectional Titles Act 66 of 1971. The developers claimed that rule 77 reserved to them the sole right to extend the scheme over a servitude area previously occupied by a monastery. The body corporate sought declaratory relief that the right of extension vested in it and that the developers’ consent was not required. The developers also retained ownership of several garage, storeroom and domestic worker units despite a local authority condition prohibiting ownership of such units by persons who did not own residential sections.

The appeal was upheld with costs. The order of the High Court was set aside and replaced with an order declaring that no right of extension vested in the developers, that all rights of extension vested in the body corporate, that the developers’ consent was not required, and that the developers were not entitled to retain ownership of specified units. The developers were given six months to sell the units to qualifying purchasers, failing which the body corporate could seek further relief.

The case clarifies that sectional title scheme rules cannot confer rights that conflict with or exceed those provided by statute. It affirms the primacy of the Sectional Titles Act over scheme rules and reinforces the requirement that rights of extension must be acquired and registered strictly in accordance with statutory provisions. The judgment is significant for developers, body corporates, and conveyancers in understanding the limits of contractual and rule-based arrangements in sectional title schemes.