It will come as a surprise, to many who live in or are associated with group housing schemes in South Africa today, that there are many such schemes in which the members themselves do not realise that they are or should be bound by a homeowners’ association - which has the right and duty to manage the scheme, control the conduct of its members, charge levies and maintain the common areas.
In many schemes, says Ulrik Strandvik of Gunstons Attorneys, the owners or those living there as tenants are not aware that a homeowners’ association will or should have been set up at the outset – this is a legal requirement.
In many schemes, says Ulrik Strandvik of Gunstons Attorneys, the owners or those living there as tenants are not aware that a homeowners’ association will or should have been set up at the outset – this is a legal requirement.
They may also not be aware that the developer will have had to draw up a homeowners’ constitution before handing over the scheme to them and this is operative and binding even if they have never heard of it.
“Quite often the developers simply fail to tell them that they do in fact have such a constitution and must organise meetings to decide how the scheme will be run.”
Strandvik says in these situations, problems arise if and when an owner decides to sell because this cannot be done without the consent of the other homeowners.
If no HOA meetings have taken place and the association is not operating, the usual procedure, he says, is for the attorney handling the sale to request a meeting of owners or their elected representatives and to ask them to approve the sale.
This can take time because owners may not be living in the scheme and may be difficult to trace, says Strandvik.
Alternatively, the attorney can arrange for a sufficient number of owners to sign a form allowing one or two of their colleagues to represent them in this matter - this too, he says, can take time to achieve.
Should these measures bear no fruit, as a last resort, the attorney can apply to the courts for permission to go ahead with the sale.
The lesson to be learned from all this, Strandvik says is that owners in schemes should check whether by law a homeowners’ association should have been established for their scheme, should set it up if it is not in place and should ensure that they have a constitution.
The types of difficulty described by him, he says, are most commonly found in small schemes with, say five to ten units.
“In the bigger schemes, developers almost always know and observe the rules applying to homeowners’ associations and some really conscientious types own a unit or two in their own schemes and are trustees in the HOA.”
