Association not liable for break-in

2019-05-22 06:00
Cleopatra Mukhari

Cleopatra Mukhari

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Question:

I live in an estate. While I was away on holiday, my house was broken into.

I feel that better security could have prevented the break-in.

However, when I raised this issue with the Home Owners’ Association, they were dismissive and said they had no responsibility for the crime. Is this true?

Answer:

A Home Owners’ Association (HOA) is a body comprising the home owners of a specific estate entrusted by the home owners with the running of the estate and communal affairs of those home owners.

In the recent case of Van der Bijl and Another v Featherbrooke Estate Home Owners’ Association, it was held that an HOA is merely a vehicle by which the home owners of the estate elect to achieve common goals.

Accordingly, in the absence of a specific agreement between the Association and its members as to the liability of the Association to protect those residing on the estate, the Court found no basis for holding that the Association had a duty to protect the home owners or that the law required that the Association should have such a duty.

Therefore, an HOA can only be held liable for the safety and security of its homeowners where it is specifically obligated to do so in its memorandum of incorporation, or if it has been contractually agreed to by the HOA with a home owner.

– Cleopatra Mukhari, associate, Phatshoane Henney Attorneys

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