MAIN IMAGE: Jeff Gilmour, President of ARC; Gabriella Keeble, SchoemanLaw
Staff Writer
Living in an estate or housing complex always comes with a host of responsibilities towards neighbours and other tenants. Buying into a “lifestyle estate” that promises security, proper care and maintenance facilities, and a fair return on their investment should they sell, many appreciate the rules – until these affect them. Jeff Gilmour, President of the Association of Residential Communities highlights a case in point.
Firstly, it must be noted that rules are created initially by the developer, when the land is first developed and a Homeowner’s Association (HOA) is formed, generally when the first erf has been sold. While an estate is being developed, and in accordance with the MOI, the HOA will remain under developer control.
Once voted in, directors and trustees have a right to amend the rules to best serve the common interests of the community. However, the process that the directors or trustees are obliged to follow is vitally important to ensure that the changed rules are valid, especially rules relating to the use and enjoyment of common areas.
Court
There are many judgments on record relating to the validity and enforceability of the rules and regulations that exist, contractually, between the homeowner’s association (HOA) or body corporate and the members of these associations.
Of significance is a recent matter where a member challenged the rights of the homeowners’ association to implement rules related to the use of roads within the community.
Mount Edgecombe Country Club Estate applied a maximum speed restriction for people using the roads in the community, and it was implied that the HOA was, in fact, applying the rules as they relate to the road traffic act. This was deemed unlawful by the applicant in his challenge.
Correctly, in the view of the Association of Residential Communities (ARC), the Judges in the Supreme Court of Appeal presiding over this matter ruled that the HOA was not applying any provisions of the Road Traffic Act, but merely applying the provisions of the contractually binding rules and regulations – the very same rules and regulations that every homeowner agrees to when buying into the residential community.
Furthermore, these residential communities are private, even though this estate did not own their roads.
The establishment of rules and regulations are left in the hands of the community and the directors of the HOA or trustees of a body corporate. Of interest is the fact that this owner even applied for leave to appeal in the Constitutional Court claiming that this rule infringed on the constitutional rights of the members in the association. Leave to appeal was denied.
Question rules
It should be safe to walk freely in our communities, where children may be playing in gardens that are not protected by walls, and it is for this reason that rules related to how one behaves when driving dangerously on our roads, are necessary.
There will also be very valid reasons for rules that are implemented, in matters relating to aesthetics, security, the keeping of pets and the use of facilities etc.
On saying this, all members of an HOA or body corporate have a right to question rules that are perhaps not clarified to the extent that they should be, or where the purpose of a rule has not been fully explained.
Directors and trustees are also encouraged to check their rules and regulations against guidelines that have been developed by the ARC. While the voluntary services of directors and trustees are always valued, a robust knowledge of the law, and rules created per community, is vital and enforceable.
Noise and nuisance
“Going to war with your neighbour usually does not end well for either party, whether in or out of court. So, it is best to always weigh your options before engaging in all-out warfare,” said Gabriella Keeble of SchoemanLaw.
The Covid-19 pandemic and the restrictions on movement due to lockdown regulations forced pandemic-led lifestyle changes for many South Africans, including fewer shopping- and leisure-related trips.
With fewer reasons to leave the house, and the ability to work from home, some neighbour’s irritating habits that were tolerable – or which simply went unnoticed – are starting to get to one.
“This can cause tension between neighbours, which usually results in a dispute,” says Keeble.
It is always better to hash things out and negotiate before a dispute escalates, Keeble said.
“An amicable agreement between neighbours that is reasonable and fair, will ultimately result in a favourable outcome for all parties involved and create harmony within the community.
“If negotiation fails, there are many alternative dispute resolution mechanisms and avenues to choose from, such as mediation or arbitration instead of proceeding immediately with litigation.
“With the current conditions of society due to the pandemic, it is difficult to set out strict rules that deal with neighbour relationships and balance each party’s individual right to the enjoyment of their property and home,” said Keeble.
“It should be noted that you are entitled to lawfully enjoy and use your property without any unreasonable impediment.
“An impediment or interference is unreasonable in terms of the courts if it is unexpected in the circumstances and does not fall within the parameters of give and take. However, the use of your property must not result in you causing a nuisance.”
The most common disputes between neighbours are defined as nuisances. These include disturbing noise, foul odours, and smoke. This can be noise from power tools, loud music and the constant barking of dogs, or damage to property caused by trees and the irritation caused by falling leaves and branches.
“As mentioned, if your neighbour is causing a nuisance and there is no amicable arrangement that can be reached to limit your discomfort, you will need to pursue legal action,” said Keeble.
Legal action
Pursuing legal action should be a last resort, but if required, this usually takes the form of a claim for damages or an application for an interdict.
“The courts will essentially try and balance the rights of the parties involved and take all the relevant factors into account to determine whether the one neighbour is causing a nuisance and if the use of his/her property is unreasonable to the detriment of the other.
“The balance that the court tries to achieve encapsulates the rights of all the property owners in the surrounding area and the two disputing neighbours. These disputes deal with the individual property rights of each property owner. When used correctly, these rights can create certainty and be beneficial for a community as a whole,” she said.
“However, they can also have an adverse effect if enforced incorrectly and place a severe burden on the community.
“Therefore, it is essential to know your rights as a homeowner and make sure that you are not acting in a manner that can be detrimental to your neighbours and that can cause a dispute. Consult with a legal professional before pursuing any legal action against your neighbour.”
