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Home Owners Association making unilateral decisions

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This week the Property Poser panel helps a reader whose Home Owners’ Association (HOA) makes unilateral decisions affecting residents without achieving a quorum at meetings.

Although the required number of members are never present, the reader says the HOA continues to make changes to the rules of her complex.

This includes the building design and style of new homes being erected and, she says, there are even plans afoot to amend the constitution.

An HOA is usually found in so-called cluster housing, says Charlotte Vermaak from Chas Everitt in Port Elizabeth.

“This is when a development is erected on a piece of land with a shared but privately-owned open space for amenities and the like.”

Vermaak says each owner obtains a separate title deed for his or her piece of land and there is a joint right of use of the infrastructure and common facilities. “The ownership of such facilities vests in the HOA.”

According to Vermaak, this body is often operated as a non-profit company.

“The constitution sets out the guidelines for the management, operation and maintenance of the common property, which usually includes landscaping, recreation facilities, private streets and driveways, outdoor lighting, communal structures and fences.”

Vermaak says the constitution also sets out the way in which any part thereof may be amended, usually at a special general meeting or at the annual general meeting.

“As in the case of sectional title schemes, an elected executive committee is responsible for the day-to-day running of the HOA.”

Members of the committee are elected at a general meeting of the owners and decisions are taken by means of resolutions at ensuing general meetings, says Vermaak.

Therefore the solution seems to lie in making changes to the current committee if it is felt that the complex is not being run properly, says Rian du Toit from DTS Attorneys in PE.

“However, in order to be effective, this should be a pervading desire among the owners.”

In order to constitute a properly convened meeting, says Du Toit, a quorum must be present.

“This requirement means that a specified number of members must be present in order for a meeting to commence and valid decisions to be made.”

Du Toit says the criteria may be the presence of a minimum number of members, or members holding certain positions or qualifications, or a combination of these.

“A minimum number of members who are entitled to vote is also the requirement for general meetings of HOA members. Both a number or proportion of owners and a qualification of some kind may apply.”

The reader may therefore have to participate in the meeting to help ensure that a quorum is present in order to effect any changes to the committee of the HOA, says Du Toit.

“If our reader is unsuccessful in her coup, it may nevertheless be worthwhile calling for formal explanations from the committee with regard to the decisions ostensibly made thus far.”

Du Toit says this challenge may gain momentum and support from the other owners, culminating in the replacement of the current committee.

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Fullstop

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