Can Your Complex Suspend Your Biometric Access Over Unpaid Levies?

An owner owned two properties in a residential estate in Midrand, one of which she rented out to tenants. A dispute arose between her and the Homeowners Association (HOA) regarding levies and other costs.

The HOA had already sued her in the magistrate’s court for the amounts they claimed were outstanding. She disputed both her liability and the amount claimed. While that case was still pending, the HOA removed fingerprint and facial recognition (biometric system) access for her and her tenants from the system. This forced them to use the visitors' entrance every time and to register as visitors in the estate.

The owner approached the High Court to have their biometric access to the estate restored. The adjudication of the claim for levies was still being handled in the Magistrate’s Court.

Can an estate use electronic access to enforce payment? The HOA referred to its Memorandum of Incorporation. This permitted the association to withhold biometric access if a member was in default – which also included failure to pay an amount due. However, the alleged default was already the subject of a separate dispute in the magistrate’s court. The owner denied owing the amount claimed by the association.

The High Court found that the association could not decide on its own that the seller [owner] was in default with her payments. Relying on breach of contract while the dispute had not yet been resolved was premature. By depriving the owner and her tenants of biometric access to the estate, the association itself violated the relationship it purported to enforce.

This also resulted in the HOA simultaneously fulfilling three roles, namely:

• the final judge of whether a debt existed;
• the final judge of what should now follow;
• the designation of the party who had to execute the judgment or penalty.

This is the kind of self-help that the law does not permit.

Is biometric access part of the possession of your home? The owner relied on the "mandament van spolie" (spoliation remedy) – a legal remedy that restores the previous status quo without first determining who is right in the underlying dispute.

The court found that biometric access was linked to the possession of the property. Unlike a separately supplied service like electricity, biometric access to the estate existed to facilitate access to a dwelling of which the residents were already in possession. The HOA cutting off their electronic access undoubtedly interfered with their undisturbed possession.

They could still enter the estate. The HOA argued that no one was actually locked out. The owner and her tenants could still enter the estate through the visitors' entrance.

The court rejected this argument. What was taken away was the convenient method of simple biometric access to the estate previously used by the owner and her tenants. Once biometric access was recognized as an incident of the possession of the property, the fact that they could still enter the estate using the visitors' entrance was irrelevant.

What about the gym and other amenities? The court did distinguish between access to the property and access to the estate's recreational facilities.

Access to the gym, tennis courts, squash courts, and clubhouse was separate from access to the owner's property. It could therefore not be restored by means of the same legal remedy. The court nevertheless indicated that denying access to those amenities – while the court process was pending and without a court order – was prima facie unlawful. However, the owner had used the wrong legal remedy for that part of her complaint.

The court issues an order instructing the homeowners association to immediately restore fingerprint and facial recognition access for the owner and her tenants. In terms of the order, the HOA must also pay the legal costs of the application.

The judgment does not allow homeowners to ignore levies that are indeed due. It does, however, confirm that a HOA cannot cut off access to a resident's property to enforce payment of a disputed debt.