Parch Properties 72 (Pty) Ltd v Summervale Lifestyle Estate Owners’ Association and Others

Summervale Lifestyle Estate was developed on Erf 5070 as a gated retirement community subject to a Home Owners’ Association (HOA) constitution. An adjacent property, Erf 6343, was later rezoned and developed into 55 garden cottages (Phase 3) by the original developer and later sold to Parch Properties 72 (Pty) Ltd. Although the HOA historically treated the owner of Erf 6343 as a member (charging levies and allowing participation), the HOA constitution defined the ‘Area’ as limited to Erf 5070. Attempts in 2022 to formally amend the constitution to include Erf 6343 failed to achieve the required majority. Parch sought declaratory relief and alternatively relief under s 39(4)(d) of the Community Schemes Ombud Services Act 9 of 2011 (CSOS Act), arguing that refusal to amend the constitution was unreasonable. The High Court dismissed the application, and Parch appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel where employed.

The judgment clarifies that the CSOS Act does not exclude the jurisdiction of the High Court and affirms litigants’ freedom to choose between the Ombud and the courts. It also provides authoritative guidance on the objective test for reasonableness under s 39(4)(d) of the CSOS Act, particularly in disputes concerning amendments to community scheme constitutions.