The Board of Directors Kya Sands Estate HOA v Ms Mahlabegoane

The applicant, the Board of Directors of Kya Sands Estate Homeowners Association, is a non-profit company administering a community scheme under the Community Schemes Ombud Service Act 9 of 2011 (CSOS Act). The respondent, Ms Mahlabegoane, is the registered owner of unit 1649 in the scheme. The HOA alleged that the respondent’s levy account was continuously in arrears and that she had failed to pay monthly levies and ancillary charges despite final letters of demand. The dispute was referred to adjudication after the Ombud considered that there was no reasonable prospect of negotiated settlement. The respondent did not file any response or submissions and did not reply to requests for further information. On the applicant’s papers, the arrear amount was R25 632.52 as at 5 December 2023, comprising levies and ancillary charges including monthly CSOS levies.

• Whether the CSOS adjudicator had jurisdiction under sections 38 and 39(1)(e) of the CSOS Act to order payment of outstanding levies and ancillary charges in a homeowners association dispute.
• Whether the applicant proved on a balance of probabilities that the respondent was indebted to the HOA for arrear levies and ancillary amounts.
• Whether, in the absence of any response from the respondent, the relief for payment of the arrears should be granted and on what payment terms.

The application was granted. The respondent was declared indebted to the applicant in the amount of R25 632.52 as at 5 December 2023 in respect of levies and ancillary amounts for unit 1649. The respondent was ordered to pay this amount in 12 equal monthly instalments of R2 136.04, commencing on 1 April 2024, with the remaining instalments due on the first day of each succeeding month. The order did not affect the respondent’s ongoing obligation to pay regular monthly levies and ancillary charges. No interest would accrue on the outstanding amount during the instalment period. If the respondent defaulted on any instalment, the full balance would become immediately due and payable. There was no order as to costs.

A homeowners association may obtain relief under section 39(1)(e) of the CSOS Act for payment of outstanding levies and ancillary charges where it proves, on a balance of probabilities, that a unit owner is indebted under the scheme’s governance documents. Ownership within the estate entails a contractual obligation to comply with the HOA’s rules and to pay levies, and in the absence of a contrary version from the owner, the adjudicator may grant payment relief based on the applicant’s uncontested documentary evidence.

The adjudicator remarked that levies are the lifeblood of an HOA and that defaulting owners are effectively subsidised by owners who pay conscientiously. The adjudicator also noted, with reference to the HOA’s code of conduct, that communal living carries responsibilities as well as benefits, including the payment of levies and adherence to conduct rules. These observations supported the reasoning but were not strictly necessary to the dispositive finding of indebtedness.

This decision illustrates the CSOS’s role in enforcing levy obligations within community schemes and confirms that an HOA may obtain a section 39(1)(e) order for unpaid levies and ancillary charges through paper-based adjudication. It reinforces a well-established principle in South African community schemes law: owners in homeowners associations are contractually bound by the scheme’s governance documents and remain liable for levies necessary for the administration and maintenance of the estate. The case also shows that where a respondent does not participate, the adjudicator may determine the matter on the undisputed papers, provided the applicant proves its claim on a balance of probabilities.