Pets, Paint And Speeding In An Estate – The Powers Of An HOA Explained
Estate living is becoming increasingly popular as it promises a sense of community, security, well-maintained facilities, and a fair return on your investment – should you decide to sell. But, lifestyle benefits aside, you should know that owning a property in an estate or housing complex also comes with specific rules and regulations.
When you purchase property within an estate managed and controlled by a Home Owner’s Association (HOA), you contractually agree to be subject to its rules and powers.
What Is An HOA?
A Home Owner’s Association (HOA) is usually a voluntary organisation whose members are the estate’s homeowners.
An Estate comes into existence when the local authority (municipality) approves the Private Township upon which the estate is developed. It is not a municipality but a form of co-ownership governed by its Memorandum of Incorporation (MOI) or Constitution and to which all members must subscribe before taking transfer of a piece of land or completed dwelling in an estate.
What is The Function Of An HOA?
The primary function of the HOA is to set and implement a set of rules, policies and procedures contained in its MOI or Constitution.
The HOA’s Constitution sets out regulations dealing with various aspects, including levy obligations, pet regulations, rental guidelines, maintenance and architectural standards, occupancy limits, parking, noise etc.
These rules protect each property owner’s interests, maintain safety, and keep the estate looking uniform and neat.
Powers Of The HOA
The courts have, on numerous occasions, confirmed the extensive powers of HOAs, which are not subject to municipal regulation.
Powers Of The HOA To Control Pet Ownership
In the matter of Abraham and Another v Mount Edgecombe Country Club Estate Management Association Two
In this case, the HOA had the discretion to permit owners to keep dogs that met specific criteria (small, not of a known aggressive breed, and would not exceed 20 kg when fully grown).
Acting in contravention of this rule, the homeowner brought a St Bernard puppy onto the property and only later applied to the management association for permission. As the dog’s weight was estimated at 70kg when fully grown, the management association denied the request, which led to the dispute.
The court ruled in favour of the HOA and ordered the homeowner to remove their dog from the estate. The judge remarked that when you purchase a unit in an estate, you voluntarily enter into a contract with the association. As with any other contract, you are bound by its terms.
HOAs are allowed to restrict pets, and the HOA’s power will depend on the founding documentation that outlines the rules.
Aiming to curtail potential nuisances, HOAs enforce pet policies to keep the estate looking pristine and to keep the peace. Overly abundant cats or noisy dogs negatively affect the quality of life and aesthetic appeal of an estate.
Powers Of The HOA To Control Paint Colour
In the matter Of Bushwillow Park Home Owners V Fernandes And Fernandes
In this case, a homeowner painted bright green stripes on the exterior of their home without the approval of the HOA – going against the rules set out in its Constitution. The court ruled in favour of the HOA and ordered the homeowner to repaint the property’s exterior in an HOA-approved colour at their own cost.
So why do HOAs want to control details such as paint colour? As part of their function, HOAs need to maintain the uniformity and curb appeal of an estate/complex. This is why each property must adhere to the common aesthetic of the development.
Powers Of The HOA To Impose Fines And Control Traffic
In the matter of Mount Edgecombe Country Club Estate Management Association II (RF) NPC v Singh and others:
The court confirmed that the roads within an estate were not public; as such, roads were not open to the general public and were accessible only by invitation of the homeowners. (The National Road Traffic Act, No 93 of 1996 does not apply within an Estate, and the HOA is thus empowered to set its own speed limits and fines.)
The rules are, however, only enforceable between the HOA and the homeowners (who are bound to the HOA and each other contractually when they became a member of the HOA) and not members of the general public.
So beware – your good friend that you had invited over for a game of golf and who had left speeding will not receive the fine – you will!
The HOA is duty-bound to make and enforce rules to protect the interests of homeowners. In this case, this entailed setting a lower speed limit to protect the estate’s children, animals and pedestrians.
The homeowner who had brought the case against the estate was ordered to pay the costs of the HOA – which is not insubstantial.
What Kind Of Legal Power Do HOAs Have To Enforce Their Rules?
The legal authority for an HOA to enforce its rules is contractual and comes from the governing documents of the HOA when the estate is established such as its Constitution. Therefore homeowners are legally bound by the provisions in these documents when they purchase their property.
Whether you like them or not, all HOAs have rules. And breaking them can have serious consequences. Our advice: If you’re interested in buying in an HOA community, be sure to do your homework. It’s important to be familiar with the HOA’s governing documents and understand its rules and regulations – before you make an offer and sign on the dotted line.
