Ashwood Mews Homeowners' Association v TB Chawuke

The applicant, Ashwood Mews Homeowners' Association (AMHOA), is a residential homeowners' association and community scheme situated in Parklands, Cape Town, established under section 29 of the Land Use Planning Ordinance 15 of 1989 and governed by a registered Constitution. The respondent, TB Chawuke, is the registered owner of unit 14 in the scheme and, by virtue of ownership, became a compulsory member of AMHOA. Under the Constitution, members are obliged to pay monthly levy contributions for the administration and expenses of the scheme. AMHOA alleged that the respondent had fallen into arrears in levy payments in the amount of R24 436.16 as reflected in the June statement. The matter was brought under section 38 of the Community Schemes Ombud Service Act 9 of 2011, seeking relief under section 39(1)(e) for payment of a contribution or other amount. The respondent did not respond to the section 43 notice issued by CSOS or to later opportunities to make submissions. A certificate of non-resolution was issued on 17 July 2023, and the matter proceeded to adjudication on the papers.

• Whether AMHOA qualified for relief under section 39(1)(e) of the Community Schemes Ombud Service Act 9 of 2011 for payment of arrear levy contributions.
• Whether the respondent, as an owner and compulsory member of the homeowners' association, was legally obliged under the scheme Constitution to pay the levies claimed.
• Whether the applicant had provided sufficient evidence on a balance of probabilities to justify an adjudication order for payment of the arrears despite the respondent's failure to participate.
• Whether a costs order should be made in the circumstances.

The application was granted. The respondent was ordered to pay arrear levy contributions of R24 436.16 to the applicant. Payment was to be made in 12 equal monthly instalments of R2 036.35 commencing on 1 October 2023 until the full arrear amount was settled. The order expressly stated that these instalments did not affect the respondent's ongoing obligation to pay regular monthly levies and allied payments. If the respondent defaulted, the full outstanding balance would immediately become due and payable. No order as to costs was made.

An owner in a homeowners' association who becomes a compulsory member by virtue of ownership is bound by the association's constitution and rules, including the obligation to pay levy contributions. Where the association proves arrear levies on a balance of probabilities and the respondent offers no rebuttal, an adjudicator may grant an order under section 39(1)(e) of the CSOS Act for payment of the outstanding amount. The constitution and rules of the association form part of the contractual relationship between the association and its members.

The adjudicator observed that non-payment of levies can seriously destabilise a scheme because levies are the 'lifeblood' of shared living schemes and fund maintenance, insurance, security, repairs, and other common expenses. The adjudicator also noted generally that parties in section 54 CSOS disputes are usually expected to bear their own costs, with cost orders being more common in dismissals under section 53 for frivolous or vexatious matters.

The decision illustrates the CSOS adjudication process for the recovery of arrear levies in community schemes and reaffirms that homeowners' association constitutions are enforceable against members as part of a contractual relationship. It underscores the importance of levy collection to the viability of community schemes and shows that, where an owner fails to answer a properly supported claim, CSOS may grant relief on the papers. The matter is also a practical example of section 39(1)(e) relief under the CSOS Act.