Burnock Investments (Pvt) Ltd and Nextworth Investments (Pvt) Ltd v Borrowdale Brooke Home Owners Association

The 1st Applicant is the registered owner of Stand 1035 (a consolidation of Stands 861 and 862) acquired after 31 December 2007. The 2nd Applicant is the registered owner of Stand 1045 (a consolidation of Stands 863, 864 and 865), also acquired after 31 December 2007, at which time a house had been built to roof level. Both Applicants are members of the Respondent homeowners' association by virtue of their property ownership in Borrowdale Brooke estate. The Respondent, a voluntary association established under common law, introduced non-development levies payable by members whose properties remain undeveloped or dormant. The 1st Applicant had been paying non-development levies at 20% of monthly levies and was up to date. Stand 1045 is fully developed into a residential house. Stand 1035 is under active development with a completion deadline of 31 December 2027. The Respondent proposed escalating levies of 50%, 100%, 200%, and 300% of ordinary levies for subsequent periods, exceeding the 20% cap in its own rules.

• Whether a non-local planning authority (homeowners' association) can lawfully charge members non-development levies
• Whether non-development levies can be imposed on properties that are actively being developed
• Whether non-development levies can exceed the 20% cap stipulated in the Respondent's own rules
• Whether Clause 7.1.1 of the Respondent's Constitution is ultra vires for purporting to bestow authority to charge non-development fees reserved for local planning authorities under the Regional, Town and Country Planning Act
• Whether Rule 9.2.1.2 is void for conflicting with Clause 7.1 of the Constitution

1. 2nd Applicant is not obliged to pay non-development levies on Stand 1045 on account of having developed the property. 2. Respondent is not entitled to charge a non-development levy with respect to ongoing developments. Consequently, Applicants are not obliged to pay any such non-development levy prior to the 31 December 2027 deadline. 3. Rule 9.2.1.2 of Respondent's Rules is void and of no force or effect on account of being in conflict with Clause 7.1 of Respondent's Constitution. 4. Respondent is not entitled to charge non-development levy in excess of 20% of the monthly levy. 5. Each party to bear its own costs.

Non-development levies imposed by a homeowners' association can only lawfully apply to properties that are genuinely undeveloped or dormant, not to properties that are developed or actively under development. A homeowners' association, being a common law universitas deriving its powers from its constitution, cannot impose levies exceeding the limits set in its own constitutional documents. Where an association's rules cap non-development levies at 20% of ordinary monthly levies, any levy exceeding this percentage is void and of no legal effect. Properties acquired after a stipulated development deadline cannot be subjected to non-development levies that accrued before the new owners' acquisition. The terms 'undeveloped' and 'dormant' in an association's constitution must be interpreted according to their ordinary meaning, with 'develop' meaning to convert land for a new purpose through construction.

The court noted that while it did not definitively rule on whether the Respondent, as a non-local planning authority, could charge non-development levies under the Regional, Town and Country Planning Act [Chapter 29:12], the specific application of levies to developed and developing properties was dispositive of the matter. The court referenced the principle from Gwaradzimba N.O. v CJ Petron & Co. (Pty) Ltd SC 12/2026 that once a dispositive issue is determined, it is unnecessary to address every issue raised. The court acknowledged the Respondent's arguments regarding sanctity of contract and the binding nature of voluntary association memberships, but found these arguments did not override the specific limitations in the association's own governing documents. The court noted that the reintroduction of non-development levies in January 2019 with a new deadline of 31 December 2027 contradicted the intention behind establishing non-development fees when applied to properties actively under development before that deadline.

This case is significant in Zimbabwean property and association law as it clarifies the limits of homeowners' associations' powers to impose levies on members. It reinforces the principle that voluntary associations derive their powers solely from their constitutions and cannot exceed those powers. The judgment establishes that levies described as 'non-development' cannot logically or lawfully be applied to properties that are developed or actively under development. It also confirms that associations must adhere to their own constitutional limitations and cannot impose charges exceeding caps set in their own rules. The case applies constitutional principles requiring statutory authority for compulsory charges, even in the context of voluntary associations. It provides important guidance on the interpretation of association constitutions and the application of ordinary dictionary meanings to constitutional terms like 'undeveloped' and 'dormant'.