Homeowners Associations: Creation of Rules

COMMUNITY RULES

In gated communities, there are pages of rules managing residents in those communities.

In a title deed, a homeowners association’s right restricts the transfer of a property.

Property owners in communities are governed by a set of rules usually introduced in a constitution and/or rule document and/or legislation in the form of bylaws or (maybe also unwritten township rules).
Rules should be intelligent choices to create certainty, protection, and order in a community. Rule and constitution writing is challenging, and a real understanding is required of the community, its problems, and challenges where the rules will apply as well as the applicable legislation. Without knowledge of the circumstances, background, and the lifestyle to be adopted in communities, legislation, rule, and constitution writing becomes hard and it is even more difficult to apply in a society who wasn’t part of the writing process.

People must find a residence and adhere to the rules written by government, council and/or developers and/or owners. However, these rules don’t necessarily cater for people’s diversity, circumstances, social and emotional intelligence, unemployment, pace of the state and people’s search for opportunities to earn a living.

Sectional Title buildings are occupied by ordinary people from different walks of life. However, they are managed against a set of multifaceted rules which is difficult to understand and to apply. Management companies are appointed to manage liquidity, collection of levies, infra structure and overall, the scheme.

Then there are those living in estates governed by Homeowners Associations. The Homeowners Association receives its authority from a constitution based on common – or company law. Common law develops over time. People governing estates are not always familiar with the common law. Developers write constitutions and rules and don’t always foresee that problematic rules can cause litigation and conflict. Council on the other hand is concerned that township conditions are written into a constitution and that council’s liability is restricted. The residents who reside in the estates are not the authors of the founding documents and become involved once a problem arises or when amendments are requested at general or special meetings.

With a common law approach the adjudicator takes the theory, analyses, and applies it to the set of circumstances to be judged. The conduct and the rule are inspected to allow an outcome to assist with the interpretation a future similar problem.

The adjudicator’s problem, however, is that once a problem is judged against legislation, it is not within the power of the adjudicator to change it. It must go back to the law maker to correct or change the statute if unconstitutional. So, the adjudicator doesn’t have a discretion. Legislation reduces discretion and the mitigating circumstances must be ignored.

THE PROBLEM WITH RULES

Why don’t people obey rules? Maybe,

  1. The reasonableness of rules is questioned.
  2. There could be circumstances overriding the application of the rules.
  3. The punishment is too harsh.
  4. Rules are interpreted against a background influenced by politics, religion, culture and/or education.
  5. The one enforcing the rule is abusing his power.
  6. Rules are applied differently.
  7. Rules aren’t applied for years creating a precedent for the future.
  8. People operate differently.
  9. The developers of the rules were ignorant of the circumstances applicable in that society or might not even know why specific rules were introduced.
  10. Rules were copied from a previous precedent and not written for the society where it is enforced.
  11. People think and do differently than a few years ago when the rules were introduced.
  12. People don’t understand the rules as they are written in a very complicated manner.
  13. People lack social skills or lost respect for institutions with authority for a particular reason.
  14. The enforcers apply rules inconsistently.
  15. Those who must adhere to the rules are ignored or not involved in the development of rules.
  16. As long there is overwhelming and increased poverty, the title of “ownership” is under attack.

UNDERSTANDING BEFORE RULE WRITING

Tylor, Tom R.& Trinkner R. (2018) argues that a person’s moral compass, attitude and respect for rules are developed from a young age. A proper education, how to communicate, how not to react when dissatisfied with the outcome of events are critical factors in peaceful relationships.
Those in positions of authority should be properly equipped and have the emotional intelligence to listen and to deal with people. Reaction follows action. How a teacher, parent, police officer, director, manager treat people can either resolve a complicated issue or create a bigger problem. Basically, Tylor and Trinkner say, value people and treat them with kindness.
Authorities must be trustworthy. If the authorities function and people feel safe, then it might be easier to follow and obey society’s rules. Authorities should understand that their power has limits. They should act with fairness. Authorities should be accountable if they act inappropriately, unconstitutional, or recklessly.
For people to recognize and respect rules they must maybe privately accept their rules and be subject to the consequences they decided on. Once, people buy into the rules there is social direction, no more confusion and in the event of breach, the penalty is usually accepted and applied with speed. The principle of consensual engagement applies and there is a voluntary acceptance of authority.
In most societies the model of coercive engagement is applied and either punishment or a reward follows. This model functions on fear and control. It is costly because it requires resources to keep it intact. Observation, mediation, arbitration, court processes, detention, fines, and a system of distrust is created.

WHAT TO BEAR IN MIND WHEN CREATING RULES

In creating rules cognisance should be given to:

  1. Serving the public at large.
  2. The law.
  3. How the rules are communicated and the accessibility thereof.
  4. Use simple language.
  5. The date of operation should be clear.
  6. Understanding the lifestyle and skill level of the residents.
  7. Providing a leeway for an adjudicator to review rules and the circumstances when it becomes controversial.
  8. Law makers should not be the enforcers.
  9. Rules should be so well written that change in the immediate future is not required.
  10. Avoid contradictions or inconsistencies.
  11. Be fair and transparent.
  12. Allow those who will be subject to the laws to participate in the process.
  13. Allow for appeal and review processes.
  14. Asking for permission to cultivate a community of respect.

The CSOS Annual Performance Plan for 2023/ 2024 indicates that South Africa is the 4th largest country in the world with gated communities and in 2050, 8 out of 10 people will be living in cities. This indicates that communities are increasing with a real need for housing and related sustainable infra structure.

The management of communities is very much a peoples’ environment, the character, ethics, good communication skills and relationships between leaders, residents and service providers are critical to allow for harmonious living conditions.

The writing of rules, and constitutions is no longer a copy and paste job. Every sentence deserves real understanding, empathy, debate, and simplicity to ensure that those enforcing “the rules” and those subjected thereto understands what is expected of them.

  1. Sunstein, Cass R. 1995. Problems with Rules. California Law Review Vol no 83 pp955-1026 [Online]. Available: [ 2023, August 23]
  1. Tylor, Tom R.& Trinkner R. 2018. Why Children follow Rules. Pp3-26[Online]. Available : [2023 November 15]
  1. Community Schemes Ombud Service.2023. Annual Performance Plan2023-2024 [Online]. Available:  [2023, June28]

Written by Michelle Horn | Second image courtesy of Michelle Burger