Know The Rules – Is it legal, reasonable, enforceable?

It’s illegal for teenagers to ride on golf carts, but some estates turn a blind eye and so risk litigation, were something to go horribly wrong. Estate managers are urged to familiarise themselves with lesser-known rules in order to avoid trouble with the law.

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As an HOA trustee at Kingswood Golf Estate, Marilyn Kamp is intimately involved with decision-making. Sometimes, this involves cases of non-adherence to body corporate rules, and remedial actions are required.

‘Yes, some rules can get one into trouble, and one biggie is the use of golf carts by minors. However, we are learning fast that all these rules are linked to other regulations, such as municipal or treasury legislation – none of which governs the use of golf carts. So careful consideration must be used by your Homeowners Association (HOA) when composing its rule book. ‘On the golf cart issue, we have been advised that being 16 and older, with a valid learner’s licence, should be conditions stipulated in our House Rules.’

Case in point In an interview with propertyprofessional.co.za, Association of Residential Communities (ARC) president Jeff Gilmour reminds us that living in an estate comes with many responsibilities towards fellow residents. ‘Buying into a lifestyle estate that promises security, proper care and maintenance facilities, and a fair return on their investment should they sell, many residents appreciate the rules – until these affects them,’ he says.

Gilmour quotes the widely publicised case of Mount Edgecombe Country Club, which applied a maximum speed restriction for its road users. ‘It was implied that the HOA was applying the rules relating to the Road Traffic Act, deemed unlawful by the applicant in his challenge.

‘Correctly, in the ARC’s view, Supreme Court of Appeal judges presiding over this matter ruled that the HOA was not applying provisions of the Road Traffic Act, but merely provisions of the estate’s contractually binding regulations.

‘These are the same rules that every homeowner agrees to when buying into the community. Furthermore, these residential communities are private, even though the estate in question did not own its roads.’

Domestic battles

The same estate was challenged by residents, and found culpable by the court, because of restrictive rules pertaining to the movement of domestic staff. These rules were held to be unreasonable and unlawful. Most pet owners will study a prospective estate’s animal regulations before moving in, but the same doesn’t always go for weightier issues such as building rules and restrictions.

Whereas a transgression on your non-removal of doggy doo or wearing the wrong slacks when playing a round of golf may incur a minor fine, crossing the line during unapproved building upgrades might leave you indebted and in hot water with local authorities, too.

NIMBYs unite

Capetonian Claire Farrell serves on the HOA of a Mother City residential estate, and says many of their challenges sprout from the flouting of rules pertaining to commercial activities.

‘I’m not talking about running a scrapyard in your back yard! But additional traffic to your home because of clients calling can be grounds for an appeal by neighbours to curb commercial activities.

‘It becomes tricky waters to navigate as the HOA then may effectively impede a homeowner’s ability to earn a living, but if an amicable arrangement can be made before roping in the lawyers, that’s first prize and much less pricey for all parties.

‘As with all estate rules, it’s key to study regulations on commercial activities before signing your deed of sale.’

Is it enforceable?

According to dvh.law.za, ‘while the general principle remains in respect of estate rules and restrictions are private ones, entered into voluntarily when electing to buy in the estate, such rules are governed by the principles of contract and, if contrary to public policy, such rules will be unenforceable.’

In the case of the aforementioned estate, the court deemed its rules governing roads and movement of domestic workers as ‘illegal and unenforceable’.

It’s just right

Budding legal eagle Karen Taylor has the final word: ‘As general starting point, steer clear of any rules that tread on the constitutional rights of homeowners in terms of religion or culture, or rules disguised as something else but ultimately discriminating against homeowners.’ Overall, estates should evaluate rules in accordance with the rights afforded to all individuals in terms of the South African Constitution, so ensuring that they are not unreasonable, overly burdensome, or oppressive.