Agostini obo Firlands Park Home Owners' Association v Trustees for the time being of Rory Bamber Trust

The applicant, Guiliana Agostini, acted on behalf of Firlands Park Home Owners' Association through its managing agent, Marite Property Administrators. The respondent was the trustees for the time being of the Rory Bamber Trust, the owner of Unit 32 Riders Way, Firlands Park, Gordons Bay. The HOA alleged that the respondent had fallen into arrears with levy contributions and related charges. Monthly statements, the approved budget and levies, and the levy collection procedure had been communicated to the respondent. The HOA relied on its constitution, including clauses providing that owners are liable for levies and that levies are due in advance on the first day of each month. A statement of account reflected arrear levies and interest of R4 580.21 as at 22 June 2023. Despite communications from the applicant, the respondent allegedly made no payment for the preceding three months and filed no submissions in the adjudication. The matter therefore proceeded unopposed on the papers.

• Whether the respondent, as owner through its trustees, was liable to pay the outstanding HOA levy contributions and interest claimed by the applicant.
• Whether the applicant had proved, on a balance of probabilities, the amount of R4 580.21 as due and payable.
• Whether the adjudicator could grant relief for future legal costs under section 39 of the Community Schemes Ombud Service Act 9 of 2011.
• Whether it was just and equitable to permit payment of the arrears by instalments rather than immediate payment in full.

The application succeeded in part. The adjudicator ordered that the respondent is indebted to the applicant in the amount of R4 580.21; must pay that amount in three equal monthly instalments of R1 526.74 commencing on 7 January 2024 until paid in full; must simultaneously pay current levies while paying the arrears; and if the respondent defaults, the full outstanding amount becomes immediately due and payable. The prayer for future legal costs was refused. No order as to costs was made.

A member or owner within a homeowners' association is bound by the association's constitution and rules regulating levy liability. Where the applicant proves, on a balance of probabilities, the existence of validly imposed levies, the governing provisions making them due, and the amount outstanding, CSOS may grant an order under section 39(1)(e) for payment of arrear levies and associated interest. Relief that concerns uncertain future legal costs does not fall within section 39 and is not competent.

The adjudicator observed that it was in the interests of justice and fairness to afford the respondent additional time to settle the arrears by instalments. The adjudicator also noted, as a general procedural matter, the standard approach to relevance and proof on a balance of probabilities in evaluating evidence. No fuller non-binding commentary appears in the order.

The decision illustrates the CSOS adjudication process for recovery of unpaid homeowners' association levies and confirms that an HOA may obtain payment orders based on its constitution and supporting account records, even in unopposed proceedings. It also underscores that CSOS relief must fall within the statutory categories in section 39 and that speculative relief for future legal costs will not be granted. The order further shows that adjudicators may structure payment in instalments where fairness and justice require it.