Levies row at posh golf estate heads to SCA
Homeowner Leggatt refuses to pay for ‘infested eyesore’
● A spat over unpaid levies at a luxury golfing estate is going all the way to the Supreme Court of Appeal (SCA).
At the heart of the matter is the extent of the rights and powers that homeowner associations have over residents.
Stephen Leggatt and his life partner Margi Taylor have for more than a decade refused to pay the levies on two vacant stands they own at the elite Blair Atholl Golf & Equestrian Estate, which was built on golfer Gary Player’s original farm in Centurion.
The stands overlook what was once a picturesque dam but which Leggatt claims is now an “infested eyesore” that has resulted in the value of the stands plummeting. More than R1m in levies is outstanding for the stands. Leggatt also bought a third stand which he developed into his home, where he is up to date on his levies.
The Blair Atholl Home Owners’ Association approached the Pretoria high court to compel Leggatt to pay his arrears. That case is pending but on December 4 the association declared Leggatt and his partner to be in bad standing and revoked their biometric access to the estate along with other privileges — including banning him from the golf club despite his fees being paid up.
This incensed Leggatt, who also has to show his driving licence at the visitors’ gate every time he comes home.
So he took the matter to the Johannesburg high court, seeking an order that the homeowners’ association unban him and reinstate his biometric access.
“It’s triviality gone mad and the directors should be ashamed of themselves and resign,” he told the Sunday Times this week.
Johannesburg high court judge Norman Manoim had little sympathy for Leggatt. In his judgment he wrote: “Leggatt spent much time in his affidavit describing the humiliation he felt at having to use the visitors’ and not members’ entrance and why golfing elsewhere was not an alternative to golfing at Blair Atholl. It is of course easy to parody these misfortunes as elitist fancies unworthy of urgent court intervention. I have some sympathy with this argument and a lack of sympathy for Leggatt’s blushes if he has to access the estate with the hoi polloi and play golf at some less-prestigious course,” Manoim held.
“However, this comparative sociology should not detract from a more compelling argument for urgency.
“It is apparent from these cases that these conflicts are occurring regularly in community schemes and that certainty on this point is necessary whichever way it is to be decided. It raises questions of the extent of property rights as well as the protection of the rule of law from the point of view of residents. From the point of view of associations or bodies corporate, the issue is one of whether they must resort to court to enforce their rules against defaulting residents, or whether they can act without a court order where there has been prior consent, as in [a] memorandum of incorporation.”
Manoim found in favour of Leggatt and on December 20 instructed the association to restore his biometric access and all privileges within 12 hours.
He ordered them to allow Leggatt “to enjoy free and undisturbed access to the estate facilities, in particular the club house with its related facilities and the Village Green restaurant”.
The homeowners applied for leave to appeal to the SCA, which was granted last week. They argued that biometric access was not an element of possession, but a contractual issue regulated by its memorandum of incorporation which had a provision that if a member was in arrears with levies the association may remove the right to biometric access. The same regime applied to the right to enjoy the golfing facility.
The association would not comment on the case, said its lawyer, AJ van Rensburg.
Blair Atholl is a lifestyle estate with a world championship golf course, the thirdlongest in the world, designed by Player. It has a full-sized equestrian arena, seven fishing dams, running, biking and hiking trails, a spa, gym, squash and tennis courts, swimming pools, soccer pitches and two restaurants. Homes on the estate fetch many millions. One is on the market for R67m.
Leggatt told the Sunday Times this week that he believes the association is in breach of its fiduciary duties to homeowners under the estate’s constitution.
“It is so unbelievably petty and sad that the association would pay such huge sums to the second-highest court in the land and waste homeowners’ money, merely to oblige me to produce a driving licence every day.”
He had bought land “overlooking a series of pretty lakes which form part of the common property” of Blair Atholl in 2009. “In 2010 the pumps stopped working and the lakes dried up into the infested eyesore it has been for years.”
Leggatt believes it is the association’s responsibility to keep the lakes in proper order and that despite numerous requests over a number of years, his pleas that the dam pumps be repaired fell on deaf ears.
“I object to paying levies of R200,000 a year for a vacant and neglected stand,” Leggatt said, explaining how his arrears were now more than R1m. He maintains the association is responsible for a situation that has caused his properties to devalue by more than the arrears he owes. Because the association failed to comply with its obligations, it was in breach of contract.
“The land is now surplus to my needs and I want to sell. It would have been one of the only remaining properties with what should be water access,” he said. He argues that he is entitled to withhold levy payments of his vacant properties until the dam is fixed.
Leggatt’s attorney, Diaan Ellis, said: “This is a topical issue because of the prevalence of gated residential complexes with biometric access and there have been a number of different decisions in different South African courts as to whether a homeowners’ association can unilaterally revoke a resident’s biometric access.”
He was now countersuing the homeowners’ association on Leggatt’s behalf for damages as well as the devaluation of his property caused by the state of the dam.
The Community Schemes Ombud Service (CSOS), the organisation mandated to regulate and monitor scheme governance documentation and adjudicate disputes, believes this dispute should have been brought to it before it went to court.
“It will be interesting to see what the court says because they generally recommend CSOS as the point of first instance. And of course it is much cheaper,” said CSOS spokesperson Lesiba Seshoka.