Lilian Waldeck obo Blue Waters Homeowners' Association v RP Myburgh

The applicant, Lilian Waldeck, acting on behalf of Blue Waters Homeowners' Association (BWHOA) and its appointed managing agent, brought an application under section 38 of the Community Schemes Ombud Service Act 9 of 2011. BWHOA is a residential homeowners' association in Clanwilliam, Cederberg, Western Cape, established under LUPO and governed by a registered constitution and house rules. The respondent, RP Myburgh, is the owner of Erf 2203 in the scheme and therefore a compulsory member of the association in terms of the constitution. As a member, the respondent was obliged to pay monthly levy contributions. According to the applicant's records, the respondent was in arrears in the amount of R12 076.65 as at June 2023. CSOS issued a section 43 notice requesting the respondent to respond, but the respondent failed to respond either to the initial notice or to a subsequent opportunity to do so. A certificate of non-resolution was issued on 13 July 2023, and the matter proceeded to adjudication on the papers.

• Whether BWHOA qualified as a community scheme and whether CSOS had jurisdiction under section 39(1)(e) of the CSOS Act.
• Whether the respondent, as owner of Erf 2203 and a compulsory member of the homeowners' association, was legally obliged to pay levy contributions in terms of the association's constitution.
• Whether the applicant had proved, on a balance of probabilities, that the respondent owed arrear levies in the amount of R12 076.65.
• Whether an order for payment should be granted in circumstances where the respondent failed to file any response or explanation.
• Whether any costs order should be made.

The application was granted. The respondent was ordered to pay arrear levy contributions of R12 076.65 to the applicant on or before 31 October 2023. No order as to costs was made.

A homeowners' association that qualifies as a community scheme under the CSOS Act may obtain relief under section 39(1)(e) for payment of arrear levies where the respondent owner is a compulsory member in terms of the scheme's constitution, levy liability is established by the governing documents and the association's records, due process has been followed, and the evidence proves the debt on a balance of probabilities. The constitution and rules of the association create a contractual relationship binding the member to pay levies.

The adjudicator remarked that non-payment of levies can seriously destabilise a scheme and that levies are the 'lifeblood' of shared living schemes because they fund maintenance, repair, insurance, security, and protect the collective interests and investments of owners. These broader observations about the importance of levy payments were not strictly necessary to decide the existence of the respondent's debt.

This decision affirms the enforceability of homeowners' association levy obligations through the CSOS adjudication process under section 39(1)(e) of the CSOS Act. It illustrates that a homeowners' association constitution creates binding obligations on owners who become members by virtue of ownership, and that uncontested documentary proof of arrear levies can justify a payment order. The order is significant in the context of South African community schemes because it underscores that levy recovery is central to the financial sustainability and proper administration of shared living developments.