By Anneke Whelan, Partner, Litigation Shepstone & Wylie Attorneys
At the heart of the many years of animosity between the home owners and the golf club at Atlantic Beach Golf Course, are conflicting interests – on the one hand, the golf club is managed by a manager who is in it for the profit and, on the other hand, the home owners require upmarket exclusivity, security and convenience. In order to achieve this, the home owners subsidise the costs of running the golf club by paying the golf club a substantial portion of their levies on a monthly basis, yet they have no say in the running of the golf club.
The court recently handed down judgment in the matter between the Atlantic Beach home owners and the golf club manager. The home owners applied to court for an order to restrain the golf club manager from conducting certain commercial activities at the golf club house situated in the Atlantic Beach Golf Estate. The home owners' case was premised on two bases. The first is the restrictive title deed condition imposed in their favour and the second is the City of Cape Town's Municipal Planning By-Laws.
The golf club manager argued in court that the title deed restriction, properly interpreted, permits the activities complained of to be conducted. Alternatively, the golf club manager say that the homeowners tacitly waived the benefit of the title deed restrictions. The court however concluded that the only reasonable interpretation to be placed on the title deed restriction is that club house facilities may only be used for ancillary uses to the primary function and purpose of the land, namely promoting and supporting the sport of golf. The title deed restriction does not permit any activity or use that does not achieve this purpose.
The court also found that the factual background reveals that, although the homeowners did not take formal, positive steps in relation to the specific activities now complained of until 2014, the golf club manager's use of the club house has been the subject of ongoing conflict and controversy between the parties since as early as 2006. It can accordingly not be said that the homeowners tacitly waived the benefit under the title deed restriction.
The court ordered that the golf club manager is interdicted and restrained from contravening the title deed restriction and the City of Cape Town Municipal Planning By-Law applicable in respect of open space 3: “special open spaces”, which restricts the use of the premises. It may accordingly not conduct the business of a beauty salon, restaurant or conferencing and event facility on the premises.
The interdict is however suspended for six months in order to allow the golf club manager to redress the unlawfulness of the activities conducted at the golf club house. The homeowners were similarly interdicted from conducting a gymnasium and restaurant from the leisure centre.
For more information on the above contact
Anneke Whelan, Partner Litigation department at Shepstone & Wylie Attorneys
+27 82 924 0500