Can estate managers or the HOA issue speeding fines to residents?

Estate managers and Homeowners’ Associations have the mandate to provide tranquil, safe living environments on residential estates.

Maintaining safety within communities is paramount and one aspect that often deserves special attention and, at times, courts some controversy is the management of speeding in the estate’s premises. Estates have had to invest in the latest tech and equipment to monitor speeding transgressors, but are estate managers getting the balance right and are the rules that they make for people to abide by fair?

Here Wilco du Toit (pictured) associate attorney at Barnard Incorporated, who specialises in property and contractual disputes, offers his legal opinion on how estate managers and HOAs can best enforce speeding fines and rules.

The need for speeding rules

Speeding within residential estates poses a risk to pedestrians, cyclists, game, pets and other drivers passing through or living on the residential estate. It’s crucial to enforce rules that prioritise safety and minimises accidents. Municipal traffic laws apply to public roads, while residential roads fall under the jurisdiction of estate management. This is why estates are forced to create their own rules for speeding offences and these are often found in the memorandum of incorporation (MOI) or conduct rules that people owning or renting a home on the estate must abide by.

Fair rules for all

HOAs and estate managers can impose fines and penalties not only on residents but any of their visitors too. ‘The Supreme Court of Appeal has made this quite clear in their latest judgement in August of last year. They can make their own rules as long as it’s within the public policy and not against the good morals of the country’s laws,’ explains du Toit.

While visitors are accountable for their actions the onus on any fines falls onto the resident that has invited the visitor onto their property. Fines can be added to the levy or issued separately. ‘The underlying principle for the resident is that you’re bound to the rules of the estate. You accept the liability of your visitors just as you would have to with any visitors under the rules of a tenancy agreement. With the MOI you agree to be bound by the actions of your visitors,’ says du Toit.

Estate rules can be more stringent to ensure safety and harmony, but it’s important to ensure they are fair too. While it may be tempting to impose fines so hefty that they dissuade anyone from going over 30km an hour, it’s not always practical to do so. Du Toit advises estate managers to outline a detailed fee schedule in the MOI that highlights that this could be reviewed from time to time. ‘It must adhere to the basic principles of the contract – but has to be reasonable. You can’t, for example, charge R100,000.

‘This is where transgressors could lodge a defence to say it’s unreasonable. It’s advisable for estates to have a clear outline in their MOI that is as objective as possible.’ Du Toit highlights that the law could offer a degree of protection to transgressors under the Conventional Penalties Act. It covers penalties under contracts and this would include MOIs.

‘Under the terms of the Conventional Penalties Act, you could raise a defence that the penalty imposed was unreasonable and ask for a reduction. However, the person that asks for a reduction or to have the fine set aside needs to prove that it was unreasonable and demonstrate the predjudice they could suffer if it wasn’t reduced.’ This, adds Du Toit, is often hard to prove particularly as you would’ve had to agree to the MOI and the rules contained therein by living on the estate.

Getting the best tech

Getting the best tech to impose and monitor speeding and other traffic transgressions on an estate, such as illegal parking, is highly important. Du Toit warns estate managers not to rely on gossip from the likes of “aunt Mabel” complaining about the noise and the speeding. Gathering solid evidence is important.

‘To avoid lengthy legal costs and battles, estate managers must ensure that the evidence gathered supports the fine. I’ve found a lot of the time that residents are kept in the dark as to what evidence there is and this often gives them the motive to dispute it. In principle, estate managers will end up in a dispute if they don’t provide the evidence. However, when I see cases with sound evidence, then I generally see half the disputes falling away,’ says du Toit.

Using the tech effectively

Estate managers should also ensure the tech they use is installed properly and doesn’t infringe on people’s privacy. ‘If you gather information and use it for that specific purpose – correctly and lawfully – I don’t see anything wrong with using the tools at your disposal. But if, for example, the camera looks onto someone’s bathroom, I don’t see the request of it being shut down or removed unreasonable,’ says du Toit.

Using the material to name and shame on social media or through the community WhatsApp group should also be considered carefully. ‘Reasonableness tests would apply and would be taken into consideration. It might be lawful to do that as it deters people from infringing on the rules, but the counter argument is that it serves no purpose in shaming someone or it may be seen as causing harm or being defamatory,’ says du Toit.