Complexes and housing estates remain a popular option for many South African homeowners because of the comforts and security they provide.
However, these types of property schemes also introduce their own legal considerations that homeowners may not be aware of.
Below BusinessTech looked at two recent cases that South Africans living in these types of properties should know about.
The issue of whether or not a Home Owners’ Association has a responsibility to protect a resident’s property was recently raised in a legal case.
A Home Owners’ Association (HOA) is a body comprising of the homeowners of a specific estate entrusted with the running of the estate and communal affairs of those that own homes there.
According to legal firm Wright Rose Innes, in the recent case of Van der Bijl and Another v Featherbrooke Estate Home Owners’ Association, it was held that a HOA is merely a vehicle by which the homeowners 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 homeowners or that the law required that the association should have such a duty,” the legal firm said.
“Therefore, a 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 it has been contractually agreed to by the HOA with a homeowner.”
In a landmark ruling at the beginning of April, the Supreme Court of Appeal (SCA) found that private estates in South Africa are entitled to establish and enforce their own traffic rules and issue traffic fines.
The KZN High Court had previously found that the estate had not taken the steps required by the National Road Traffic Act to erect road signs, and also said that enforcement may only be carried out by a peace officer.
However, on appeal, the SCA ruled that the roads within the estate are not public roads and instead form part of a private township.
“Whilst it is correct that some members of the public (or persons other than those residing in the estate) are permitted to enter the estate, there is no right on the part of the general public or any section thereof to traverse the roads,” said the SCA’s Judge Ponnan.
“This has been the historical position since the estate was first established. The non-owners who are permitted to enter the estate are persons who are there with the authority and permission of the owners, and are not to be regarded as forming part of the ‘public’ for the purposes of the definition of ‘public road’.”
He added that when the respondents chose to purchase property within the estate and become members of the Association, they agreed to be bound by its rules.
“The relationship between the Association and the respondents is thus contractual in nature. The conduct rules, and the restrictions imposed by them, are private ones, entered into voluntarily when an owner elects to buy property within the estate.”