We often choose to live in secure communities with high walls, only to find that the rules within these communities start to annoy us. The prescribed color of paint, a 40 km/h speed limit, the height of fences, and the behavior of kids and dogs can become serious points of contention. Homeowners often view the HOA as the enemy when they are penalized for these infractions. However, how many of us actually read the Constitution and estate rules? Instead of merely complaining, we should put effort into changing the Constitution and rules.

The difficulty arises when municipal bylaws, and national legislation are included in the HOA Constitution/MOI and its rules. It becomes even more challenging when the HOA Constitution/MOI limits rights attached to possession, treating every rule as a contractual provision. If a municipal bylaw or legislated rule is breached, the HOA might see it as their duty to penalize the homeowner since it has been included in the Constitution/MOI. In my opinion, legislated rules and bylaws shouldn’t be in HOA Constitutions/MOIs as it causes confusion and oversteps the HOA’s enforcement role. The HOA often ends up assisting law enforcers to ensure community compliance with legislation, which might create a conflict of interest. The HOA should advocate for their community members rather than act on behalf of the municipality or legislator.

But what happens when an HOA rule and a legislated rule are not in sync? The MOUNT EDGECOMBE COUNTRY CLUB ESTATE MANAGEMENT ASSOCIATION II (RF) NPC appellate decision is a good example. The HOA notified its members and, with their agreement, imposed a consensual speed limit of 40 km/h, even though the legislated speed limit is 60 km/h. This change was allowed by the court as it was seen as beneficial. However, if the rule had been changed to 70 km/h, it would have required permission from the MEC or the local municipality.

Personally, I don’t believe that the MOUNT EDGECOMBE case has been decided correctly. The court allowed the change of legislation in a contract alternatively argued that private roads fall outside the scope of the legislation. This sets a dangerous precedent. Roads have an extensive definition and speed limits have been addressed in the NATIONAL ROAD TRAFFIC ACT NO. 93 OF 1996. Until the legislator changes the law to accommodate a differentiation between public and private roads, roads should be interpreted within the boundaries of legislation.

In fact, the MOUNT EDGECOMBE case is causing more confusion. Gated communities can now argue that they are above the law due to agreements reached between the HOA and its members. While their intentions might be good, the application of a more self-help principle to maintain order within these communities can lead to abuse and an overregulated environment, causing tension and driving good people out of these communities.

Consider rules that “force” homeowners to build within a specific time and penalize them with fines if they don’t comply. The complication arises when municipal building plan approvals take months, causing homeowners to run into the penalty period. Penalties of R 5000 per month can be substantial. In the case of MICHAEL M BILL and WATERFALL ESTATES, Bill refused to pay the penalties, arguing that municipal delays caused the issue. With Bill in arrears, the Waterfall Estate Directors refused his contractors access to the estate and deactivated the biometric access linked to his property. The Estate Directors relied on the contract between the HOA and its members to justify this action. The question was whether access is a contractual right or a possessory right. The court found that access is not a contractual right; it is granted because of property possession. Dispossessing someone against their will or without a court order is self-help, which is not allowed. Section 34 of the Constitution guarantees every individual the right to adjudication in disputes. Contracts should not enable parties to take the law into their own hands. The focus should be on remedying contraventions rather than collecting levies due to non-compliance. HOAs must also adhere to the law and follow the process of collecting outstanding money.

So, the principle must be clarified. Can legislation or bylaws be changed by contract? If this is allowed, it sets a precedent where communities create their own laws.

If not, then legislation must be revised to address the evolving needs of communities. This includes community laws, driving golf carts within communities, speed limits, simplified building regulations with oversight by a professional board, streamlined zoning changes, and accommodations for remote work rather than traditional commercial settings.

To effectively address the challenges in modern community living, it’s crucial to put effort into revising HOA rules and Constitutions. By incorporating research and data on how communities have evolved, we can ensure that changes to homes and regulations are not only cost-effective and efficient but also in alignment with contemporary needs. This approach will help create a more adaptable and supportive environment for all residents.

Written by Michelle Horn and edited by Erusha Reddy