www.MyPE.co.za: Our panel has received an e-mail from a reader who has recently moved into a freehold complex where the “house rules” are somewhat of a grey area.
She finds no reference to a Homeowners’ Association in the Deed of Sale and says she has no access to the property’s title deed.
Charlotte Vermaak from Chas Everitt Port Elizabeth says a Homeowners’ Association is often imposed by the municipality upon a developer as a requirement for the land to be zoned and partitioned in a desired manner.
“It generally entails the development of a parcel of land into units that are held under free title that are subject to a body of rules to which the residents must conform and which regulates the surrounding land.”
The rules applicable to a Homeowners’ Association take the form of a constitution that is adopted by the developer, according to Vermaak. “Although not always the case, it is generally lodged with the town planning and/or zoning department of the local municipality.”
Vermaak says the constitution is then administered by the board comprising certain of the homeowners.
“The board’s consent is often required for what might be regarded as mundane aspects relating to the property, such as the transfer thereof to a new owner. Such consent is also typically required by the Deeds Office to pass transfer.”
Vermaak says although it is a material requirement, it may – for whatever reason – happen that the Homeowners’ Association is not mentioned in the Deed of Sale.
“However, a Deed of Sale should generally contain reference to the fact that the purchaser, following registration or transfer, is obliged to be bound to the conditions of the title deed.”
Jacques Ehlers from Du Toit Strombeck Attorneys in Port Elizabeth says it is thus imputed that the purchaser has knowledge of, in this instance, the constitution of the Homeowners’ Association. “The title deed would have been required in order for the conveyancer to complete the transfer.”
Ehlers says it is possible that a copy is obtainable from the conveyancer. “If not, the reader could source a copy from the Deeds Office or request an attorney to obtain an information copy thereof.”
The title deed will generally only reference the name of the Homeowners’ Association, but this may be sufficient as a start to source the constitution, according to Ehlers. “A copy of the constitution may also be obtainable from fellow homeowners or the board.”
Ehlers says it does sometimes happen that there is no active board and that the owners administer their own properties.
“The problem with this approach is that the owners do not contribute to a fund and then there is no money to rectify damages should they occur. The municipality is generally not responsible for infrastructure within the complex.”
If it becomes clear that no constitution exists, the current homeowners may need to call a meeting and prepare and adopt a constitution that will be administered properly, advises Ehlers.
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