Cape Town - A battle over a parking bay waged by residents of a sectional-title complex in Bantry Bay went all the way to the Western Cape High Court.
Guido Rauch and Maeve Shamoon, who jointly own a unit in the upmarket Florentia sectional-title scheme, have been in dispute with Xandra Bollinger, who owns three units, over the use of a parking bay since April 2019.
Evidence presented in court said the scheme comprises 29 units and common property. Sections 1-15 are simplex flats (apartments on one floor only) while sections 16-18 are garages.
The remaining units are storerooms or quarters for domestic workers. In addition to the three garage units, which are individually owned, part of the common property on the basement and ground levels is set aside for use as parking bays. The disputed PB19 is one of these.
The evidence before the court showed that Rauch and Shamoon jointly own unit 7 while Bollinger owns units 2, 11 and 17.
Explaining the genesis of the story in his ruling, High Court Judge Owen Rogers said it was Bollinger’s ownership of unit 11 that brought her into conflict with Rauch and Shamoon.
Judge Rogers said that In terms of the 1971 act, a scheme such as the one in the case had to be governed by rules once a body corporate was established. The default rules were contained in schedules 1 and 2 of the act, but they could, by unanimous or special resolution, respectively, be substituted, supplemented or amended.
In 1983, at the inaugural meeting of Florentia’s body corporate, it adopted new schedule 1 and 2 rules.
At that time, unit 7 was owned by Stella Lipsitz and unit 11 by Marion Back, who’s inheritors sold to Bollinger.
When Lipsitz died in 1998, she bequeathed the property to her greatniece, Nina Hart, who eventually sold it to Rauch and Shamoon in April 2016 for R12.9 million.
The estate agent who showed the property in 2016 pointed out PB19 as the parking bay which accompanied unit 7.
Upon taking transfer of unit 7, Rauch and Shamoon used PB19 when they were in South Africa and were charged and paid levies for it.
This continued until April 2019, when Bollinger asserted the right to use PB19, this despite the fact that she had taken possession of unit 11 in February 2017 and had not previously shown an interest in the parking bay.
Ruling in favour of Rauch and Shamoon, Judge Rogers said: “When Rauch and Shamoon and Bollinger bought their units in 2016, nobody, and this includes Bollinger herself, believed that PB19 was attached to Unit 11.”
The judge ruled that Rauch and Shamoon held the exclusive rights to the parking bay and ordered that Bollinger remove any vehicle which she or any tenant of hers had parked in parking bay 19.