Understanding homeowners associations (HOAs)
If you are considering buying a property in a housing development, it’s essential to understand what a Homeowners Association (HOA) is and how it operates. HOAs are legal entities responsible for managing and regulating housing development schemes. Although homeowners own their individual properties, the HOA maintains and oversees communal infrastructure, such as roads, security systems, and other shared amenities. When purchasing a property in a housing development, the title deed will typically include a condition that mandates automatic membership in the HOA for the new owner. Additionally, the transfer of ownership cannot occur without the HOA’s approval. During the registration process, you will receive access to the HOA’s Constitution and Conduct Rules. Here is an example of the language you might find in the title deed: “SUBJECT to the following condition contained in Deed of Transfer Number Txxxx/20xxx, imposed by Stormers Country Estate (Pty) Ltd, Registration Number XXXX/XXXXX/XX, as developers, and as stipulated in the Stormers Country Estate Homeowners Association Constitution, established under Section 29 of the Land Use Planning Ordinance No 15 of 1985, and approved by the City of Cape Town under Section 42 of the same ordinance, regarding the subdivision of Erf XXXX Cape Town: ‘That the within property may not be sold or transferred without the prior written consent of the Stormers Country Estate Homeowners Association, of which the Transferee shall become a member. Such consent shall not be unreasonably withheld.’” HOAs can be established through two legal structures: as a non-profit company or a common law association. Non-Profit Company: An HOA set up as a non-profit company operates under a Memorandum of Incorporation and is governed by the Company Act. Common Law Association: An HOA established under common law operates according to its Constitution, guided by Common Law. In both structures, the HOA’s governing documents serve as binding contracts for homeowners/members within the development. These financial and governance documents must be submitted annually to the Community Schemes Ombud Services (CSOS) for record-keeping and oversight. The Constitution and Core Duties of HOAs The Constitution of a common law association outlines the operational obligations and governance structure of the HOA. It allows members or executive members to create regulations and rules that bind all members. The Constitution details the scope of the HOA’s activities and the powers of its executives, which are typically defined during general meetings. Core Duties: Maintenance and Repairs: One of the HOA’s primary responsibilities is the upkeep and repair of communal spaces and shared amenities. This includes tasks such as landscaping, pool maintenance, parking lot upkeep, and the management of recreational facilities. By collecting membership fees, the HOA ensures these areas are well-maintained, enhancing the living experience for all residents. Enforcement of Rules and Regulations: HOAs establish and enforce community guidelines, which may cover architectural standards, noise restrictions, pet policies, and parking regulations. These rules are essential for maintaining the community’s appearance and ensuring a high quality of life for all members. Financial Management: The HOA board oversees budgeting and financial management, ensuring funds are allocated transparently and effectively. While HOAs do not have inherent powers to impose penalties on members, their governance documents may grant them the authority to pursue legal action for collecting overdue levies, fines, or other fees owed by members. A well-managed HOA, with effective oversight by elected executives, can foster a strong sense of community and potentially enhance the market value of individual properties. Before purchasing a property within a housing development scheme, reviewing the applicable governance documents and familiarising yourself with the rules and regulations you will be expected to follow is crucial. Reference: Home Owners’ Survival Manual by Graham Paddocks While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Are you obligated to pay arrear levies when purchasing a sectional title unit? Part 1
Recently, the High Court and the Supreme Court of Appeal (SCA) was required to interpret Section 15B(3)(a)(i)(aa) of the Sectional Titles Act 95 of 1986 in relation to a sale in execution in the case of the Body Corporate of Marsh Rose v Arno Steinmuller and others. The Sectional Titles Act 95 of 1986 stipulates in Section 15B(3)(a)(i)(aa) that the registrar of deeds shall not register a transfer of a unit or an undivided share therein unless he is presented with a conveyancer’s certificate attesting to the fact that, as of the date of registration, the body corporate has certified that all monies owed to the body corporate by the transferor in respect of the said unit have been paid, or that payment has been made to the satisfaction of the body corporate. In this matter, Mr Steinmuller bought a property in a sectional title scheme sold by the sheriff in a sale in execution. The previous owner of the property owed money to the body corporate of Marsh Rose in respect of arrear levies. The body corporate obtained a judgment against the previous owner for the said amount. When Mr Steinmuller purchased the property at the sale in execution, the judgment debt was still due. The body corporate sent Mr Steinmuller an invoice stating that an amount was owed to them for the property purchased (the clearance figures), which had to be paid before the body corporate would provide the clearance certificate. According to the terms of the sale in execution, Mr Steinmuller was required to pay any levies that were owed to the homeowners’ association or body corporate. He insisted on receiving the ledgers containing the sums claimed for levies for the specific period, as well as the resolutions passed by the body corporate’s trustees regarding the interest charged thereon. The body corporate declined to give the requested information. It stated that Mr Steinmuller was not yet the owner and therefore not entitled to receive it. Due to this, he filed an application with the High Court of Gauteng, requesting an order directing the body corporate to sign all documents and take the required actions to enable the transfer of the property into his name, against payment of R150 000 into a trust account as security for the levies that the body corporate was owed. The High Court granted his application with an increase of the sum to be paid into a trust account as security. The judgment debt that the body corporate acquired against the property’s former owner was not included in the sum granted. According to the court’s ruling, a judgment debt is not an obligation owing to the property and thus should not be a burden on the new purchaser. The body corporate appealed to the SCA with the National Association of Managing Agents (NPC) as co-appellant. The SCA ruling will be discussed in part 2 hereof. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
The omission of a single word can lead to a will being contested
The contents of an “inelegant and very badly drafted” will were recently the subject of a dispute in the South Gauteng High Court, in the matter Strauss vs Strauss and Others. The plaintiff instituted action claiming that the joint will of his parents not only made provision for the situation where they died within 30 days of each other, but also if the survivor died after the expiry of the 30-day period without having made a subsequent will. The first and second defendants are the plaintiff’s sisters. The late Mr and Mrs Strauss, the parents of the plaintiff and the defendants, were married in community of property. They made a mutual will on 27 March 2014. The will stipulated that in the event of the death of one of them, the surviving spouse shall inherit the estate of the other and be nominated as executor or executrix. In the event of them passing away at the same time or within 30 days and the surviving spouse had not made a new will, then in terms of clause 4.2: “Only if we die simultaneously or within 30 days of each other, in such circumstances in which the survivor does not make a further will, then in that case we bequeath the entirety of our estate as follows:…”. Mr Strauss passed away in 2015 and Mrs Strauss three years later. She never made a new will. The question now is whether clause 4.2 is applicable or whether the estate must devolve in accordance with the law of intestate succession. The plaintiff alleges that clause 4.2 must be interpreted to also apply when the two testators died more than thirty days apart and the surviving spouse had not made a new will. The word “or” must then be read into the clause so that it reads as follows: “Only if we die simultaneously or within 30 days of each other, or in such circumstances in which the survivor does not make a further will, then in that case we bequeath the entirety of our estate as follows:…”. The defendants, however, contended for a different interpretation according to which the whole estate would devolve in terms of the law of intestate succession if the surviving spouse failed to make a new will within 30 days. They argued that the word to be read into the text, if one is to be read into the text at all, is the word “and”. The clause would then read as follows: “Only if we die simultaneously or within 30 days of each other, and in such circumstances in which the survivor does not make a further will, then in that case we bequeath the entirety of our estate as follows:…”. The court took cognisance of the common law presumption against intestacy as well as the principles of the interpretation of documents. The court held that a court should always attempt to attach an interpretation to the wording of a will that will lead to a sensible and not a nonsensical meaning. The court held that the only sensible interpretation of clause 4.2 is to be found by reading in the word “or”, thus for the clause to read: “Only if we die simultaneously or within 30 days of each other, or in such circumstances in which the survivor does not make a further will, then in that case we bequeath the entirety of our estate as follows:…”. The court ruled in favour of the plaintiff and awarded him costs, including the costs of senior counsel. The omission of a single word can lead to a will being invalid with the result that the estate devolves in terms of the law of intestate succession, and not according to the wishes of the deceased. It is advisable to obtain assistance from an attorney or a fiduciary expert with the drafting or amendment of your will. Reference list: 1. Strauss v Strauss and Others (2020/2236) [2023] ZAGPJHC 377 (24 April 2023) 2. The Intestate Succession Act, 81 of 1987 While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
How to proceed with divorce when your spouse cannot be found
Rule 44(1) of the Uniform Rules of Court states that documents requesting a divorce or marriage annulment must be personally delivered to the person it concerns unless the court allows a different service. But what if the sheriff can’t deliver the documents because the person has disappeared or moved abroad? This article will explain alternative service methods the court might approve when personal service isn’t feasible. Alternative methods of service: Substituted service If the person who needs to receive a divorce summons (the defendant) cannot be found, you can ask the court to allow the notice to be published in a newspaper instead. This process is called substituted service and is done by way of a Notice of Motion where the names and status of the parties are described in full, with the necessary averment that the defendant’s residential and work addresses are unknown to the plaintiff (applicant). The application must also set out the following: (1). Why the court has jurisdiction. (2). What the cause is (i.e. divorce due to irretrievable breakdown of marriage relationship). (3). What attempts were made by the plaintiff to trace the defendant. Further averment must also be made regarding which newspaper the defendant usually reads and that the summons will thus come to their attention as a result of the publication in the newspaper. A combined summons is issued before the substituted service order, of which a shortened version will be published in the newspaper. Edictal citation If a defendant is abroad an application must be brought to the High Cout by way of an ex parte application wherein: – The parties are fully described. – The cause is set out. – An explanation of where the defendant is. – A prayer that the court permits that the divorce summons may be served in another country by way of edictal citation, with a one-month period given to respond or defend. After an order is granted, an ordinary summons is issued and served in terms of the stipulation of Rule 4(3) and (4) of the Uniform Rules of Court. Rule 4(3) states that service of any process in a foreign country shall be effected by any person who is, according to a certificate issued by the head of the South African Diplomatic or Counsellor Mission, authorised to serve such process. In terms of Rule 4(5) a sworn translation in the official language of the country where the summons is to be served must be made and has to be served with a certified copy of the summons, if the language of the summons differs from the language of the country of service. It is clear from the above that if personal service of divorce summons is not possible, the court can still order that the summons be served either by way of substituted service or edictal citation. Reference list: 1. Uniform Rules of Court 2. Matrimonial Matters and Divorce, Training Guide, L.E.A.D Law Society of South Africa 3. High Court Practice Training Guide, L.E.A.D Law Society of South Africa While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup