Browsing by Author "Van der Merwe, C. G."
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- ItemThe adaptation of the institution of apartment ownership to civilian property law structures in the mixed jurisdictions of South Africa, Sri Lanka and Louisiana(Juta Law Publishing, 2008-02) Van der Merwe, C. G.INTRODUCTION: Since the maxim superficies solo cedit disallows separate ownership of land and parts of a building, special legislation was necessary in South Africa, Sri Lanka and Louisiana to breach this principle of accession and legitimize the institution of apartment ownership in these mixed jurisdictions. At the time when urgent housing shortages, especially near centers of employment, compelled these jurisdictions to promulgate statutes to regulate apartment ownership, the most attractive workable precedents available were the common law statutes of New South Wales, British Columbia and certain United States’ statutes. The great success which especially New South Wales enjoyed in providing housing to thousands of Australians led to the transplantation of the New South Wales statute to South Africa and Sri Lanka. The impetus for the first generation Louisiana Horizontal Property Act of 1962 was the availability of Federal Housing Authority insured mortgages for condominiums in states where condominium regimes were authorized by local law. This Act is copied almost verbatim from the Arkansas Property Act, which in turn borrowed from the Puerto Rican statute altering the civilian terminology in that statute to suit common law requirements. Because of numerous shortcomings, the Horizontal Property Act was replaced by the Condominium Act of 1974 and finally the Condominium Act of 1979. Although these second and third generation Louisiana statutes conform to the terminology of the Civil Code, the latest Act borrowed heavily from the Uniform Condominium Act approved by the Commissioners on Uniform State Laws in 1977. The Uniform Condominium Act and the New South Wales strata legislation are the two most sophisticated common law statutes in the world.
- ItemThe availability of the mandament van spolie when upon the subdivision of a farm into two portions and the alienation of these portions to different owners, an existing exit road is replaced : Van Rhyn NNO v Fleurbaix Farm (Pty) Ltd 2013 5 SA 521 (WCC)(Juta Law, 2014-01) Van der Merwe, C. G.This case concerns the availability of the mandament van spolie in a particular scenario. The context is the subdivision of a plot of land. After the subdivision the owner of one of the subdivided portions closed off a gravel road that provided access to a public road to the owners of both subdivided portions. In an application for a spoliatory order the court a quo directed the appellants to restore the respondent's right of access by way of the gravel road across their property to the road connecting the two properties to the public road. This case came on appeal to the full bench of the Western Cape division of the high court.
- ItemCan personal servitudes be worded in such a way that they are perpetual in nature and thus freely transferable and transmissable(Juta Law, 2013-01) Van der Merwe, C. G.The issues in Resnekov v Cohen (2012 1 SA 314 (WCC)) were whether a restrictive condition inserted into the title deeds of the servient property constituted a praedial or personal servitude, and if found to be personal, whether it could be made transferable to successors in title by the correct wording of the restrictive condition in title deeds of the servient property.
- ItemComparative survey of the legal challenges faced by mixed-use sectional title (condominium) developments(Juta Law, 2018) Van der Merwe, C. G.ENGLISH ABSTRACT: Over the years mixed-use sectional titles (strata titles, condominium) schemes have become increasingly popular over the world and also in South Africa. A mixeduse sectional titles scheme consists typically of a combination of residential and commercial units, but the term can also apply to the combination of residential units and office units or a combination of residential, commercial and office units.1 The increased popularity of mixed-use residential and commercial schemes2 can be attributed to the increased popularity of residential strata title homes in general. Again, the ability to combine the carefree lifestyle afforded by strata title ownership with the conveniences of in-house shops, offices and restaurants appeals to many house buyers.
- ItemA critical analysis of the innovations introduced by the Sectional Titles Amendment Bill of 2010(Juta Law Publishing, 2011-01) Van der Merwe, C. G.The Sectional Titles Amendment Bill of June 2010 proposes to address gender equality, remove obsolete provisions, make technical adjustments, extend consumer protection and eliminate a substantial number of problems encountered in the practical application of the Act. The most important amendments relate to an adaptation of the definitions of "developer" and "owner"; the facilitation of unanimous resolutions; the clarification of whether doors and windows form part of a section or part of the common property; the rectification of the discrepancies pertaining to certificates of real right of extension of sections and of exclusive use areas; the fractionalisation of undivided shares in units; the extension of sections and of schemes by the addition of sections; contributions to the administrative fund and the legalisation of special levies; and a freeze on the use of exclusive use areas. This will transform the Sectional Titles Act into a highly efficient statutory instrument to tackle the ever-increasing issues facing the sectional title industry, bring clarity to conveyancers and deeds registry officials, and strengthen the position of trustees and managing agents involved in the governance of schemes. However, the relation between the relevant provisions of the Act and the Local Government: Municipal Property Rates Act 6 of 2004, needs tidying up. Further main issues of concern are the overfractionalisation of rights of exclusive use; the fact that the new owner is not made liable for outstanding instalments on special levies after a unit has been registered in his or her name; the non-qualification of the wide discretion of trustees to impose special levies; the unclear division of the fund for administrative expenses into an operational and a reserve fund budgeted for at each annual general meeting and the non-adoption of a two-tiered management structure for larger and especially mixed-use schemes.
- ItemA critical analysis of the role of the developer in sectional title developments(Juta Law, 2008-01) Van Schalkwyk, C. L.; Van der Merwe, C. G.The introduction of sectional titles in South Africa has opened the door for developers to explore new opportunities in property development and to reap considerable profits in the expanded real estate market. Since sectional title developments can comprise residential units, offices, shops, commercial and industrial units and especially mixed schemes, the opportunities are endless. The developer plays an essential role in the creation process of a new sectional title scheme. Much of the success of a development depends on his performance during these initial stages. Sectional title legislation has to curb developer abuses and protect purchasers and sectional owners against malpractices. However, these measures should aim to balance in an equitable fashion the interests of all the parties concerned.
- ItemJudicial redress against a body corporate of a sectional title scheme for failure to comply with its maintenance obligations before and after the new sectional title legislation came into operation : discussion of Lyons v The Body Corporate of Skyways 2016 6 SA 405 (WCC)(Juta Law Publishing, 2019) Van der Merwe, C. G.In this case an elderly applicant, Mr Lyons, applied to the Western Cape High Court for an interdict obliging the body corporate to repair four of the five elevators in his sectional title scheme which had been out of commission for over two years. As it was common cause that the first two requirements for an interdict were satisfied, the court considered the argument of the body corporate regarding the third requirement, that there were other remedies available namely the convention of a special meeting to discuss the matter and the election of new trustees to compel the engaged elevator service providers to repair the lifts speedily. The court rejected this stance as an inefficient solution to the problem and granted the interdict compelling the body corporate to have the elevators repaired within a period of three months. In the second part of the article, I have shown that Mr Lyons would have been in a better position if he sought relief after the coming into operation on 7 October 2016 of the Community Schemes Ombud Service Act 9 of 2011 (“CSOSA”) and the Sectional Titles Schemes Management Act 8 of 2011 (“STSMA”) and the related Regulations. The CSOSA pertinently makes specific orders available to applicants in the position of Mr Lyons, to force the body corporate to carry out maintenance and repair of the common property. The STSMA and related Regulations oblige the body corporate to ensure that the administrative and reserve funds of bodies corporate contain sufficient money for the maintenance and repair of elevators. In addition, the Regulations oblige the body corporate to prepare a 10-year maintenance, repair and replacement plan for major capital items (including escalators). This plan would ensure that escalators are always kept in good working condition.
- ItemMany faces of sectional title : a comparative survey of the inadequate legal treatment of non-residential sectional title schemes(Juta Law, 2016-10) Van der Merwe, C. G.Although sectional titles were primarily introduced to meet the growing need for residential accommodation within commuting distance from urban centres, nothing precluded the institution from being utilised for mixed schemes and various kinds of non-residential developments. The aim of this contribution is to give an overview of the various kinds of non-residential strata developments encountered in Europe, Australia, Canada and the United States and to highlight the advantages of non-residential sectional title schemes compared with the more typical alternatives. The alternatives are commercial, industrial and office units developed on separate plots of land and multi-unit rental schemes containing commercial, industrial and office units leased to businessmen and industrial and professional tenants. It will then be shown that due to the focus on residential schemes, non-residential schemes are inadequately regulated in the various condominium and strata title statutes. The conclusion will focus on the South African non-residential sectional title industry to determine the extent to which the relevant provisions of the Sectional Titles Act fall short of the demands of the market.
- ItemThe most recent amendments to the sectional titles regulations(Juta Law, 2013-01) Van der Merwe, C. G.The Sectional Titles Amendment Regulations, 2013 promulgated in GG 36241 R 196 of 14 March 2013, amend the Regulations promulgated by GN R 664 of 8 April 1988 as amended. The amendments consist of amendments to the Regulations, Annexure 1 of the Regulations and Annexure 8 of the Regulations. The most interesting amendments are the amendments to Annexure 8, which deals with the prescribed management rules of a sectional titles scheme.
- ItemPolish apartment ownership compared with South African sectional titles(Juta Law Publishing, 2006) Van der Merwe, C. G.; Habdas, MagdalenaINTRODUCTION: The aim of this article is to compare the institution of apartment ownership in a former socialist country, Poland, with the institution of sectional titles in South Africa. We shall see that the seed of Polish apartment ownership was already ingrained in the Napoleonic Civil Code adopted in Poland in 1808. By contrast South Africa shunned its historic links with Roman-Dutch law and transplanted the common-law strata title legislation of New South Wales in Australia to regulate the ownership of sections in a multi-unit building in the Sectional Titles Act of 1973.We shall start with some general remarks on the Socialist property system that prevailed in Poland after the Second World War. A brief survey of the legislative history of apartment ownership in Poland and South Africa will then be attempted, followed by a critical evaluation of various aspects of the Polish and South African institutions. On the one hand, South African lawyers would find it interesting to see how apartment ownership was reconciled with socialist ideas and how these ideas still linger on in the most recent Polish legislation on apartment ownership. On the other hand Polish lawyers are given a glimpse of how apartment ownership is regulated in a more sophisticated ‘‘second generation’’ statute.
- ItemThe rationale for the imposition of non-financial obligations on apartment owners in a sectional title scheme(Juta Law Publishing, 2015-03) Booysen, Juann; Van der Merwe, C. G.The principal aims of sectional title schemes are to preserve the physical integrity and the pleasant appearance of the sectional title building and to strive for harmony in an intensified community where the individual units are physically interdependent and the residents are seldom completely homogeneous. Therefore, sectional owners are burdened with numerous financial and non-financial obligations in terms of the Sectional Titles Act 95 of 1986, the prescribed management and conduct rules and the common law concept of nuisance. This contribution examines the various non-financial obligations imposed on sectional owners relating to their sections, exclusive use areas and the common property. The examination of the content and rationale of each of these obligations indicates that the imposition of non-financial obligations on sectional owners are essential for preserving the physical integrity of the sectional title building and social harmony in an intensified sectional title community. Consequently, the surrender of freedoms inherent in the non-financial obligations imposed on sectional owners is a fair price to be paid for a well-preserved building and a contented and harmonious sectional title community.
- ItemRecent amendments to the sectional titles regulations(Juta Law, 2016-03) Van der Merwe, C. G.The Sectional Titles Amendment Regulations, 2015 (GG 38923 GN R 548 of 30-06-2015) introduced a few important amendments to the Regulations promulgated by GN R 664 of 8 April 1988 (as corrected by GN R 991 of 27-05-1988) as amended. These amendments concerned the Regulations, Annexure I dealing with the various forms to register certain real rights in terms of the Sectional Titles Act 95 of 1986 and Annexure 8 dealing with the management rules for sectional title schemes. These amendments came into operation one month after publication in the Gazette namely on 30 July 2015.
- ItemReflections on Chinese apartment ownership law (part 1)(Juta Law, 2014-01) Van der Merwe, C. G.Pissler studied law at the Maximilian University of Würzburg and law and sinology at the University of Hamburg. He conducted language studies and research at the Sino-German Institute for Legal Studies at the University of Nanjing from 1996 to 2002. In 2002 he was appointed as Senior Research Fellow for China at the Max Planck Institute for Comparative and International Law in Hamburg. He is a member of the advisory board of the Zeitschrift für Chinesisches Recht (which contains annual bibliographies of Western-language works on Chinese law compiled by him since 2003) and Schriften zum Chinesischen Recht since 2008. Besides three major works on Chinese law, he contributed several shorter pieces to collections, commentaries, handbooks, encyclopaediae and Chinese legal journals. He has translated several important decisions of the Chinese supreme people's court.
- ItemReflections on Chinese apartment ownership law (part 2)(Juta Law, 2015-01) Van der Merwe, C. G.The Property Code stipulates that the owners themselves, a professional management firm (service provider) or any other manager may manage the scheme. The Real Estate Management Regulations require that condominium management must be performed by one of the established management firms in the property management district concerned. The management firm must be appointed by all the owners jointly. However, due to the fact that a now repealed regulation of the construction ministry required that a service provider must be appointed prior to the sale of residential units, the general practice is that the initial management firm is appointed by the developer. The regulations provide that the developer must conclude a written provisional contract of services with the firm.
- ItemReflections on the concurrence of the remedies in terms of the reformed Pound legislation and the actio de pastu(Juta Law Publishing, 2014-01) Van der Merwe, C. G.A landowner who finds animals trespassing on his land has the following alternatives: he can chase the animals off the land; impound the animals; or institute the actio de pastu for monetary compensation for damage caused to his land. Administrative proceedings under the pound ordinances were cheaper and speedier than action proceedings under the actio de pastu. After impoundment, the poundkeeper could sell the animals, without giving notice to the owners, and compensate the landowner for damage from the proceeds of sale. The constitutional validity of certain of the above provisions incorporated in the Natal Pound Ordinance 32 of 1947 was successfully challenged in the High Court of KwaZulu-Natal and confirmed by the Constitutional Court in 2005 in Zondi v MEC for Traditional and Local Government Affairs 2005 3 SA 589 (CC). The consequences of Zondi were that the administrative proceedings sanctioned by the Natal Pound Ordinance were replaced by judicial proceedings after impoundment through their rules over the process of execution, denied by the Natal Ordinance; assessment of damages caused by stray stock can no longer be made by private persons but must be incorporated in the judicial process established for supervising the process of impoundment; and the landowner and the poundkeeper are henceforth required to exercise care to identify the stockowner and to notify him or her at all stages of the execution process of what is happening to his or her stock. As a result of Zondi the KwaZulu-Natal Pound Act 3 of 2006 replaced the Natal Pounds Ordinance of 1947 with new legislation which would satisfy the constitutional dictates of Zondi. It is concluded that although the KwaZulu-Natal Pound Act has placed constitutional burdens on the landowner, the fact that it allows motion proceedings to found a judgment debt, means that impoundment proceedings would still be speedier than the action procedure under the actio de pastu.
- ItemShould short-term letting be allowed in sectional title schemes?(Juta Law, 2018) Van der Merwe, C. G.Short-term letting of bedrooms and apartments in condominiums for periods shorter than six or three months is not a new phenomenon. It has always been possible to grant tenancies lasting a few months or less. What is new are the digital platforms that are facilitating the commercialisation of such short-term letting. The recent surge in popularity of global accommodation websites such as Airbnb and Stayz enables sectional owners to advertise and market their apartments to holidaymakers all over the world. These opportunities are being seized by apartment owners around South Africa, including premier residential complexes in coastal towns and cities, where there is a burgeoning demand for secure, affordable, self-catering holiday accommodation. Increasing numbers of condominium owners who bought into condominiums for the purpose of investment or as holiday or retirement accommodation are abandoning traditional long-term leasing in favour of private holiday letting. Owner occupiers and even tenants are also joining the party by letting out spare rooms and even couches to supplement their income. An increasing number of sectional owners prefer the high income generated quickly from shortterm letting over the traditional forms of renting out their sections on longer-term leases. The higher income makes it easier for them to cope with any increases in mortgage interest rates and sectional title levies.
- ItemTwo-tier governance for mixed-use and large-scale sectional title schemes(Juta Law, 2008-12) Van der Merwe, C. G.; Paddock, GrahamWith rapidly growing South African urbanization, mixed-use developments are recognized as the most viable utilization of high-density urban space. In specialized sectional title schemes consisting of one or more multi-unit ownership buildings, there is an increasing need to separate the various components of the scheme according to user and to apply the rules of sectional title separately to each component. In a scheme that comprises a commercial component, for example offices and residential units, there is no reason why all the members of the scheme should be responsible for the maintenance of a lift that serves only a particular component. Similarly, owners of commercial units in a mixed-use scheme should not depend on the co-operation of the other owners if they wish to make rules applying to the toilets used by their clients. Moreover, there is no reason why owners of every component of the building or buildings should not have a separate budget to cover their own expenses. Singapore strata title legislation has tried to accommodate these inevitable clashes of interests which ultimately result in disharmonious sectional title communities by introducing a two-tier management structure consisting of a main management body administering general matters and two or more subsidiary management bodies administering the affairs of a particular user group. The aim of this paper is to consider whether this unique system could be adopted as a model for introducing a two-tier governance system in South Africa.
- ItemThe various policy options for the settlement of disputes in residential community schemes(Juta Law Publishing, 2014-01) Van der Merwe, C. G.This contribution in honour of David Butler surveys the various policy options for the resolution of disputes in community schemes. The options are internal mechanisms, co-regulation, government regulation, a simplified procedure in ordinary courts, the establishment of specialised strata title tribunals and the establishment of a specialised sectional title ombud service. The basic characteristics of each policy option are explained and each option is subjected to critical assessment. Illustrations of self-regulation are the neighbourhood committees of Colombia in South America and the meetings convened by the President (chairperson) of Catalan condominium schemes to attempt dispute resolution. Instances of co-regulation are provided by the Ontario Condominium Act of 1998, the British Columbia Strata Property Act SBC 1998, the Florida Civil Rights statute on Condominiums (Florida Civil Rights 2013 FlaStat XL Ch 718 Condominiums) and the English Commonhold and Leasehold Reform Act of 2002. These statutes oblige strata owners to resort to mediation and arbitration before approaching the courts. Similar dispute resolution mechanisms are encountered in Catalonia and the Basque Region of Spain and in the Dutch Model Bylaws for apartment ownership schemes. Under the heading government regulation the functions of the Singaporean Commissioner of Buildings and the Sri Lankan Condominium Management Authority are explained. After a brief discussion of the simplified court proceedings practised in Germany and the streamlined dispute resolution proceedings before a Justice of the Peace in Portugal, the role of specialised tribunals in dispute resolution in Singapore and New South Wales is attended to. The article is concluded with a survey of the special ombudsman service in Nevada and Florida in the United States and the South African ombud service in terms of the newly promulgated Community Schemes Ombud Service Act 9 of 2011. The latter mechanism is hailed as one of the most advanced dispute resolution systems in the world.
- ItemVonnisbespreking : die magtiging wat vereis word vir strukturele verandering aan 'n deel en die aangrensende gemeenskaplike eiendom in 'n deeltitelskema(LitNet, 2016-03-08) Van der Merwe, C. G.In hierdie saak moes die hof uitspraak gee oor ’n regspunt wat nie voldoende deur die Wet op Deeltitels 95 van 1986 behandel word nie. Die applikante wou twee kombuisvensters in hul woonstel op die grondvloer van ’n deeltitelkompleks vervang deur groter vensters met die doel om die invloei van natuurlike lig in die kombuis te verbeter. Weens beswaar deur die eienaar van die woonstel op die eerste vloer bokant hulle nader die applikante die hof om te bepaal watter soort magtiging vereis word om die voorgestelde verandering aan te bring. Die nuutheid van die regsvraag in hierdie saak was dat die Wet op Deeltitels en die voorgeskrewe bestuurs- en gedragsreëls nie die veranderinge binne woonstelle en aan die gemeenskaplike mure wat die woonstel omring, behoorlik reguleer nie.
- ItemWay of necessity : should blokland ever be left sterile(Juta Law, 2008-01) Van der Merwe, C. G.Jackson NO v Aventura Ltd decided in the Cape high court and its sequel in the supreme court of appeal, Aventura Ltd v Jackson NO, raise interesting questions about undeveloped mountainous agricultural properties being converted to holiday resorts or private family vacation areas without providing a sufficient exit to a public road. In the present case the dominant land concerned was landlocked or "blokland" - ie enclosed on all sides by neighbouring land without an exit to a public road. According to case law on via necessitatis this is a classic example where the owner of the dominant land would be entitled to a way of necessity to a public road in order to exploit the dominant land to its full potential. This case is, however, complicated by the fact that the property concerned as well as all the surrounding properties have been declared sensitive coastal areas in terms of regulations (reg 1526 of 27 Nov 1998) promulgated under the Environment Conservation Act 73 of 1989, which prohibit the disturbance of vegetation and earthworks in these areas and the construction of a road without the consent of the environmental authorities concerned. Consequently the court was faced with the dilemma of whether to decide the issue on common law principles alone or whether it was competent to take environmental issues into account in its decision to grant or not to grant a way of necessity.