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Constitution obliges owner to comply with HOA rules

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Some confusion regarding an occupancy certificate has led a reader to seek assistance from Property Poser’s panel of experts.

The reader explains that he received an occupancy certificate from the local council and, based on this, moved into his new home.

The homeowners’ association in his scheme subsequently sent him a letter advising him that he has to pay a fairly sizeable sum of money as a penalty for taking occupation without an approval letter from them, even though he had already submitted a copy of the occupancy certificate to the HOA.

According to Sean Radue of Radue Attorneys in Port Elizabeth, an occupancy certificate is issued in accordance with the National Building Regulations and Building Standards Act.

“It certifies that a building has been completed in accordance with the approved building plan and also confirms that all other relevant requirements have been met.

“Therefore, before it can be issued, certain documents need to be provided.”

Radue says these documents include approved building plans, a completion certificate from a registered structural or civil engineer, a certificate in respect of the roof trusses, an electrical certificate of compliance and also a certificate of compliance by the Institute of Plumbing South Africa.

“These safeguard the owner of the property by proving that all relevant building standards have been duly met.”

As the Act requires an occupancy certificate for every building before occupation, properties cannot be sold without an occupation certificate, says Radue.

“Insurance companies might also refuse to honour claims that resulted from fire or public liability should the property not comply with the Act at the time of the incident.”

The reader’s situation regarding the penalty imposed by the HOA is slightly different, he says.

Radue says in a recent matter involving the Vanilla Street Homeowners’ Association, it was decided that where the constitution of an HOA provides for certain limitations on the residents’ rights, the constitution obliges owners to comply with the HOA rules.

“In that case, the owner wanted to conduct a business from his home and the relevant zoning provisions allowed him to do so.”

However, he says, since the HOA constitution specified that the properties could be used for residential purposes only, it was found to overrule the provisions of the local zoning scheme.

“In this instance we aren’t aware of the provisions of the constitution relating to our reader’s property. But if it is the case that further requirements have been instituted by the HOA, it may well be that our reader was obliged to abide by them.”

Radue says this case provides another example of how potential homeowners need to ensure that they are aware of all relevant provisions of the constitution of the HOA they are buying into.

“It will generally be binding and can only be changed by following the procedure set out in the same constitution.”

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Fullstop

Full Stop Communications is a public relations consultancy in Port Elizabeth in the Eastern Cape of South Africa focusing on media relations and copywriting. We drive regional and national media campaigns in a number of fields, most notably in the property, legal and sports arenas. We also specialise in media monitoring, ghostwriting, editing, translation and advertising. See more articles by Full Stop.