When people buy into a lifestyle estate that promises security, proper care and maintenance facilities, and a fair return on investment, most residents appreciate its lifestyle estate rules – until they are affected. Jeff Gilmour, president of the Association of Residential Communities (ARC) highlights a case in point.
Initially, a lifestyle estate rules are created by the developer – when the land is first developed – and a Homeowner’s Association (HOA) is formed, generally when the first erf has been sold. Once voted in, directors and trustees have a right to amend the lifestyle estate rules to best serve the common interests of the community. However, the process the directors or trustees are obliged to follow, is vitally important to ensure the changed rules are valid, especially relating to the use and enjoyment of common areas.
WHEN COURT STEPS IN
There are many judgements on record relating to the validity and enforceability of the lifestyle estate rules and regulations that exist, contractually, between the HOA or body corporate, and the members of these associations.
Of significance is a recent matter where a member challenged the rights of the HOA of the Mount Edgecombe Country Club Estate to apply a maximum speed restriction for people using the roads in the community. It was implied that the HOA was, in fact, applying the rules as they relate to the National Road Traffic Act. The applicant deemed that this was unlawful.
In the view of the ARC, the judges in the Supreme Court of Appeal presiding over this matter, correctly ruled that the HOA was not applying any provisions of the Road Traffic Act, but merely applying the provisions of the contractually binding rules and regulations of the estate – the very same rules and regulations that every homeowner agrees to when they buy into the residential community.
KNOW THE LAW
It should always be safe to walk freely in an estate, where children may be playing in gardens that are not protected by walls, and it is for this reason that rules related to how one behaves when driving dangerously on the estate’s roads, for instance, are absolutely necessary. There will also be valid reasons for lifestyle estate rules with regard to aesthetics, security, the keeping of pets, and the use of facilities, etc. On saying this, however, all members of an HOA or body corporate have a right to question these rules.
Directors and trustees should check their rules and regulations against guidelines developed by the ARC, and while the voluntary services of directors and trustees are always valued, a robust knowledge of the law, and rules created per community, is vital and enforceable.