Whether residents can be denied biometric access to estates or complexes because of unpaid levies is a question that has been considered by homeowners associations and our courts in recent years. There are conflicting judgements in various divisions of the High Court on this issue and the recent case of Leggatt and Another v Blair Atholl Home Owners Association NPC has brought the issue again into the spotlight.

This case dealt with whether a homeowners association (HOA) has the power to terminate the access of residents to an estate and its facilities because of unpaid levies. The HOA terminated defaulting residents’ access to the estate via the biometric access system. The residents could still access the estate through the visitors’ entrance. The access was denied in accordance with a provision of the HOA’s Memorandum of Incorporation.

 

The residents argued that the actions of the HOA amounted to self-help, and they sought a mandament van spolie i.e. relief to restore possession or control after unlawful deprivation. According to the HOA, the fact that biometric access was denied in accordance with the Memorandum of Incorporation means it was contractually agreed upon.

 

The parties agreed that:

 

“If the [HOA] had entirely removed the right of access to the residents this would have amounted to unlawful spoliation. Second, if the right was purely contractual then the mandament could not be used to enforce such a right.”

 

The point of contention was therefore whether there was a deprivation of the right to possession of property. Different divisions of the High Court have come to different conclusions depending on the facts before it. The court in this matter applied the reasoning that the right to biometric access is not a mere personal or contractual right but an incident of possession. The remedy for restoring possession was therefore available to residents in these instances of dispossession.

 

It is important to note that not every matter in every estate will have the same facts. Therefore, the conclusion in this judgement may not be the conclusion of a court in other situations. There is also no judicial consensus on whether a denial of biometric access is permissible.

 

The court in this matter granted the HOA leave to appeal its judgement and ordered that it be heard by the Supreme Court of Appeal. The Supreme Court of Appeal may provide us with some legal clarity on the issue of terminating biometric access.

 

The judgement of the Gauteng Local Division can be found here: https://lawlibrary.org.za/akn/za-gp/judgment/zagpjhc/2023/1528/eng@2023-12-27.

 

The judgement granting leave to appeal the judgement of the Gauteng Local Division can be found here: https://lawlibrary.org.za/akn/za-gp/judgment/zagpjhc/2024/179/eng@2024-02-22 or https://www.saflii.org/za/cases/ZAGPJHC/2024/1753.html.

 

This article does not constitute legal advice or replace the need to seek advice. It also does not contain all the information relevant to the subject matter. Each situation is different and must be evaluated on its own merits. For advice on property related disputes, our contact details are below.