Luke Skywalker, Master Yoda and Obi Wan ...

Asked by hiiiilll on 25-03-2024 20:37:10
Question posted in the Property Law category relating to Western Cape

Luke Skywalker, Master Yoda and Obi-Wan Kenobi, purchased one of the properties in the Naboo Estate (“the Estate”) in equal shares. The property is an incomplete dwelling which requires further development. They became the registered owners of the property in 2014.  As co-owners of the property in the estate they automatically became members of the Naboo Home Owner’s Association (“the Association”) and became bound by the association’s articles of association that amongst other things requires members to pay levies per month.  However, as a result of the costs associated with developing the dwelling, they fell behind with the payment of their levies and penalities imposed by the Association. Subsequently, Luke now wants to transfer his share in the property to his father, Darth Vader. After concluding the sale agreement and before transferring the share in Darth Vader’s name, Luke informed the Association about the sale agreement.  The Association notified Luke that all outstanding levies and penalties up to the date of registration must be settled before he can transfer his share. The Association is of the view that it is entitled to require such payment before transfer may occur on the basis of a condition prescribed in the title deed between the registered co-owners and the Association. The title condition is found in 5(B)(ii) of the title deed and stipulates that: ‘[t]he owner of the [property] or any subdivision thereof, or any person who has an interest therein, shall not be entitled to transfer the property or any 1 subdivision thereof or any interest therein without a clearance certificate from the Naboo Home Owner’s Association that the provisions of the Articles of Association of the Home Owner’s Association have been complied with”.  Luke wants to transfer and register the share in the property into Darth Vader’s name but is unsure whether his co-ownership is subject to the title condition. With reference to case law, determine whether the title condition constitutes a real or personal right and provide Luke with advice regarding his legal position.  

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