How far do the powers of the homeowner’s association stretch?

November 1st, 2020
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Mount Edgecombe Country Club Estate Management Association II (RF) NPC v Singh and Others 2019 (4) SA 471 (SCA)

The question of how far the scope of powers of the homeowner’s association stretch was answered in the Mount Edgecombe case.

The case involved questioning the extent of powers of a homeowner’s association, insofar as conduct rules relating to speed limits and traffic penalties may be imposed for exceeding the speed limit imposed by the relevant homeowner’s association.

Brief history

The respondent’s daughter was issued with three contravention notices for exceeding the speed limit of 40km/h during October 2013, which the respondent refused to pay the penalties, citing the alleged unlawfulness of the conduct rules insofar as traffic fines fell within the scope of the National Road Traffic Act 93 of 1996 (the Act).

The matter was on appeal from the KwaZulu-Natal Division of the High Court in Pietermaritzburg, where the court found that essentially the Edgecombe Country Club Estate (the Estate) had not taken adequate steps required by the Act to erect signs. It was conceded by the homeowner’s association that the roads were public roads and, therefore, within the confines and scope of the Act.

The Estate subsequently took the matter to the Supreme Court of Appeal (SCA), where the SCA overturned the concession made by the homeowner’s association that the road on the estate was a public road.

In terms of the Act a ‘public road’ is defined as ‘any road, street or thoroughfare … which is commonly used by the public or … has a right of access’, the court found that this must be interpreted widely (para 12).

The court then went on to apply the rationale as found in S v Rabe [1973] 2 All SA 640 (C) and found that the roads of the Estate were private roads. It cited factors, such as: Access control to the Estate and safety measures, which only authorised persons could enter, not the general public. The SCA held that the term general public could not be used to describe the third parties who have been granted permission by the owners to enter.

In finding that the network of roads were private roads, it followed that the relationship between them was purely contractual in nature and governed by the realm of private law.

The court held at para 20: ‘No sanction is imposed on the third party. The third party’s adherence to the rules is thus a matter for the owner who invited him or her onto the estate. It is the owner who has to ensure that the third party complies with the conduct rules or bear the consequence of any sanction imposed in consequence of such non-compliance.’

Lastly, it should be noted that the SCA did say that the position may have been different had the homeowner’s association sought to appropriate the powers under the Act, which it did not. It had attempted to manage the mischief sought to be cured under the Act, by adding a lower speed limit.

What does this mean?

This case essentially outlined the powers of the homeowner’s association by stating that the relationship between them and the homeowner is governed by the law of contract in private law.

To elaborate, when a homeowner’s association places restrictions on homeowners and the restrictions have gone through the procedures outlined in the rules of the homeowner’s association memorandum of incorporation and the restrictions are authorised by the relevant rules, and they are not contra bonos mores, based on this decision of the SCA, it is likely that the court will rule in the favour of the body corporate should a dispute arise.

Be wary of what you sign, as you will be bound by these rules as long as you continue to live in the Estate. You will also be held personally liable for the misconduct of your guests.

See also:

Craig Harris LLB (UKZN) is a candidate legal practitioner at Mason Incorporated in Pietermaritzburg.

This article was first published in De Rebus in 2020 (Nov) DR 38.

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