As the landscape of South Africa develops, an ever-increasing number of people are moving into estates, complexes, and other gated communities. Others, who may just be entering the housing or rental market, are moving into apartments or flats within a sectional title scheme.

These community schemes are usually governed by an entity – it is thus useful for residents to be aware of how their community is governed so that should a dispute arise, they are sufficiently equipped to resolve matters quickly and efficiently.

Homeowners Associations and Body Corporates are known as “community schemes”

Estates, complexes, and other gated communities are usually governed by a Homeowners Association (HOA). Similarly, apartment blocks, which can form part of a sectional title scheme, are governed by Body Corporates. These organisations are known as “community schemes” and usually comprise of elected member residents who are obliged to, for example, manage communal areas, ensure that utilities are running effectively, and manage overall finances.

The HOA or Body Corporate will usually levy a monthly fee which contributes toward maintaining the community and paying expenses related to the scheme.

HOA’s and Body Corporates are governed by certain rules

HOA’s and Body Corporates are governed by a set of rules or bylaws, which stipulate its obligations, as well as those of the homeowner or resident. Residents may be restricted by certain rules: for example, there may be a limitation on the number of pets a resident may keep on their premises, certain colours which a resident may not paint their house, or a rule against hanging laundry out to dry on a street-facing balcony.

Similarly, HOA’s and Body Corporates are also governed by their own bylaws – they must uphold their duties and obligations, as well as abide by the rules.

Disputes between HOA’s and residents: quick and effective resolution

Where a dispute arises between a resident and a HOA or Body Corporate, it is essential that the dispute be resolved quickly and efficiently, so as to avoid any further undue stress and conflict. The Community Schemes Ombud Service Act 9 of 2011 was enacted to provide an effective dispute resolution mechanism for parties involved in community scheme disputes. This dispute resolution mechanism is relatively informal and takes place outside of the courts.

Where a dispute has arisen, a party may apply to the Community Schemes Ombud Service (CSOS) in the prescribed manner. The application submitted must specify the relief sought by the applicant, as well as the grounds on which the applicant relies. The application also involves the payment of a fee. The CSOS will then refer the matter to conciliation.

Where conciliation is not effective and the matter is not resolved, the conciliator will refer the matter to further adjudication. Adjudication involves a similar process, and the adjudicator conducts a thorough investigation prior to the hearing. The adjudicator will then make a finding that is binding on all parties involved in the dispute. Although this mechanism takes place outside of the courts, the adjudication order is enforceable in the Magistrate’s Court and the High Court, depending on the nature of the relief granted and the quantum of the claim.

We provide expert and effective assistance in resolving community scheme disputes

Should you require any further information or assistance in resolving a dispute with your HOA or Body Corporate, please contact our experienced Conveyancing and Property Law attorneys.

For Conveyancing and Property Law expertise

Nicholas Hayes             nicholas@abgross.co.za

Marita Swanepoel        marita@abgross.co.za

Farzanah Mugjenkar    farzanah@abgross.co.za

David Kagan                  dgkagan@abgross.co.za

.

Disclaimer

The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.