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It isn’t just a rumour, it is true. In a bid to get homeowners to pay levies and adhere to estate rules, managers and their Homeowner’s Associations (HOAs) have, in the most extreme scenarios, resorted to removing access control rights as a form of punishment.
It is a contentious issue, as essentially the homeowner is being denied access to their home, which in most cases they rightfully own. In 2016, the very issue was brought before a court, in the case of Singh and Another v Mount Edgecombe Country Club Estate Management Association 2016 (5) SA 134 (KZD).
The facts of that case
The daughter of homeowner Mr Singh who owned a property and resided in the Mount Edgecombe Country Club Estate in Kwa Zulu Natal, was fined for driving over the speed limit within the estate, as per the HOA rules, on three different occasions.
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After refusing to pay the fines, the HOA terminated Mr. Singh and his family’s right to access the estate using the biometric scanner. Instead, each time they entered the estate, they had to manually sign in at the security gate and so Mr Singh brought an urgent application to have their access rights restored.
What does the law say?
In short, the Court found that the limitation on Mr Singh and his family’s access rights was unlawful and, as such, these rights had to be restored with immediate effect.
Mr Singh relied upon what is known as the mandament van spolie. ‘This remedy is aimed at restoring control and/or possession of property to a party from whom it was taken by unlawful self-help, in other words, without following proper legal process,’ explains Henno Bothma, lawyer and director of Abrahams and Gross law firm in Cape Town.
Bothma explains that the court found that Mr Singh was in peaceful and undisturbed control of the property and that the HOA disturbed his control by means of self-help. Mr Singh and his family used their security cards and the biometric scanner to enter the estate and the denial by the HOA to allow them to access the estate in this manner amounted to a spoliation.
‘The courts rely on a rigid approach in this regard and will not allow parties to rely on self-help methods. As such, where a resident is in contravention of the estate’s rules, the HOA cannot stop that resident from using its access card or biometric system to gain access to the estate. The mandament van spolie is a unique remedy in that it can be granted speedily without having to investigate the parties’ rights. Mere possession will suffice,’ Bothma continues.
So, what options do HOA’s have?
Even though the law doesn’t allow HOA’s to legally enforce access control, property managers do have some recourse, provided they only proceed according to their own rules as Neil McKinnon, attorney at Hammond Pole Attorneys in Boksburg explains.
‘HOA’s can remove the owner’s right to vote at annual general meetings and special general meetings for one. They could also approach the owner and set out an agreed payment plan if they are struggling to foot the levy bill for example, but this must be authorised in terms of the rules of the HOA and the trustees. The HOA and trustees are within their right to decline the request for a payment plan,’ concludes McKinnon.
