Understanding Home Owners Associations and body corporates LAW CORNER

2016-09-07 06:00

THE time has come for you to downscale. Naturally, security is of the utmost importance and a secure complex seems perfect.

However, apart from the many benefits, communal living requires you to have regard and consideration for all the residents in your new complex and as such you will find that your conduct and management within your newly acquired property are regulated either by a home owners association or a body corporate (if the complex is governed by the Sectional Titles Act, Act 95 of 1986); House Rules and Title Deed conditions.

In 2006, in a judgment in the Witwatersrand High Court, the relationship between the member and the home owners association to which he becomes a member upon taking ownership of his property is defined as:

The nature of the relationship established between home owners in a townhouse complex under a Memorandum of Association to which each subscribes, constitutes an agreement in terms of which each home owner submits contractually to the decisions of a body of elected trustees to whom they have conferred the right and power to make binding decisions on matters that affect their relationship inter se or which generally affects their complex.

These rules are generally designed to look after the communal interests defining what you may and may not do to ensure that you are a good and responsible neighbour however rules need to be understood to ensure that you are not in contravention of the rules of the home owners association or body corporate.

The KwaZulu-Natal High Court recently laid down judgments in two cases involving the validity of rules and the conduct of a management association which highlight the following principles:

• The Court will not simply declare certain specified conduct rules of the association as unlawful and as a result authorise an owner/member to simply disregard the rules.

The Court made it clear that even though a rule may “irk one’s “individual sense of propriety and fairness”, because of their restrictive and regimented nature, they cannot be said to be contrary to public policy ” [sic] and therefore be declared unlawful. It is the implementation and enforcement of the rules by the management association, which may result in the invalidation of the rule.

• The management association may not take a punitive action which results in the owner not being permitted access to his property to exercise his proprietal rights without seeking an order from the court to prohibit such owner access to his property.

If the management association, as a result of the owner not having paid a fine imposed against him by the management association, takes an action which prohibits the owner from gaining access to his property to exercise his proprietary rights, such action is tantamount to what is referred to in law as “self-help”. It is a long established principle in our law that self-help is unlawful and that any provision in a contract providing for such will not be enforced by our courts.

Before buying into a complex you simply have to do your homework properly. The fact of the matter remains, that you have to acquaint yourself with the rules of the complex applicable before you sign on the dotted line. Once you have bound yourself contractually, you are bound by these rules and the implications of non- compliance therewith. The High Court has in a recent cases reinforced this principle by stating that the nature of the relationship between the member/owner is contractual, based on the voluntary choice by the member by purchasing property, residing within the estate and subjecting themselves to the association’s rules and that in any case which is referred to the Court, the Court will decide the matter within the contractual framework.

At J Leslie Smith &
Company we have
experienced professionals who can assist you in looking into and understanding the potential pitfalls of buying in a complex.

Phone 033 845 9700 or email jls@jleslie.co.za for further assistance.

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