This is a follow on question to one I ha...

Asked by the Customer on 25-09-2019 09:59:39
Question posted in the Property Law category relating to Western Cape

This is a follow on question to one I had originally submitted and answered by Patrick. We have now just receive the following email from the HOA’s solicitor

We act for the Home Owners Association.In short we advised our client that arising from the fact that it was established in terms of Section 29 of the Land Use Planning Ordinance (Cape No. 50 of 1985), membership thereof by your clients arose automatically and that accordingly your clients are members thereof and are bound by its constitution and by its rules regardless of the fact that in their title deed there is no reference to the Association. In respect of the title deed issue we have advised our client that it is entitled to apply to the Registrar of Deed to insert the erroneously omitted clause relating to clients’ membership of the Association.In the circumstances of this matter our instructions are to advise your clients that in respect of any letting of their property they are required to comply with the provisions of sub-sections 10.14.5.2 and 10.14.5.3 of the constitution of the Association, a copy of which appears to be in possession of your clients.”

Message from the Attorney

Posted by Att. Patrick on 25-09-2019 12:02:33

Hi there and thank you for your follow-up question,

The Land Use and Planning Ordinance (“LUPO“) was originally applicable in the Eastern Cape, Northern Cape and Western Cape Provinces, however it has since been repealed in the Western Cape Province by the Western Cape Land Use Planning Act, 2014

Unfortunately, your HOA most probably came into being before 2014 - so it would have been in terms of LUPO.

The LUPO previously made provision for local municipalities to approve new subdivisions of land, on condition that a home owners’ association ("HOA") be established to manage the subdivision.

The condition that owners would automatically become a member of the HOA would be recorded in the title deed of each ERF.

You have previously said that your title deed did NOT contain such a recordal, and my previous advice was given on that basis.

It now appears that there is a HOA and that you are actually obliged to be a member of the HOA. In this regard, the HOA's attorneys advised: "In respect of the title deed issue we have advised our client that it is entitled to apply to the Registrar of Deed to insert the erroneously omitted clause relating to clients’ membership of the Association."

They clearly record that the clause was erroneously omitted.

So, if they are entitled to apply to the Registrar of Deed to insert the erroneously omitted clause relating to the membership of the HOA, then you would be a member of the HOA, and you would be subject to the Constitution and the Rules.

You would therefore need to follow the rules pertaining to short-term rentals from the property, as well as all other rules which are in place.

If this has caused you a loss, you might have a claim against the previous owner of the property if the previous owner made any misrepresentation to you about being liable to join the HOA.

You might also be able to challenge the HOA's application to the Registrar of Deed to insert the erroneously omitted clause relating to the membership of the HOA on the basis that - (a) you would not have bought the property had you known about the HOA issue; or (b) you would have paid less because of that; or that (c) the limitation unjustifiably infringes upon your Constitutional rights to use and enjoyment of your property and to make a living.

But, if you want to go down this litigation route, I strongly recommend that you consult with a conveyancing attorney to understand your rights (with the documents in hand please!) and a property / litigation attorney who can assist you in bringing such an application.

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Message from the Customer

Thanks for your reply Patrick we have appointed a lawyer, but I wanted to bounce the email to you as you had previously supplied us with good advice. Susan