Legal Articles

The current legislation which exists for the purpose of land use management in South Africa is known as the Spatial Planning and Land Use Management Act (SPLUMA) of South Africa.

Land Use Planning Legislation

Found in terms of SPLUMA is LUPA which is the acronym used for the Western Cape Land Use Planning Act. This Act exists to enable municipalities in the Western Cape to implement their own land use planning bylaws.

Although there is no specific legislation which makes provision for the management of Home Owners’ Associations (HOAs), SPLUMA and LUPA govern how they are established.

Western Cape Land Use Planning Regulations

The City of Cape Town was the first municipality in the Western Cape to implement a bylaw regarding land use planning in terms of LUPA.

Subsequently, the City of Cape Town Municipal Planning By-Law (CCT MPB) became effective in the beginning of July of 2015.

Management of Home Owner’s Associations

The Land Use Planning Ordinance of 1985 (LUPO) provided for local municipalities to approve new subdivisions of land.

This was only done on the condition that a HOA be established in order to properly manage the subdivision.

LUPO provided the following for HOAs:

• The association had to be a corporate body
• The objective of the HOA was to control and maintain the facilities and buildings of the association
• The members of the association had to be the owners of the properties in the subdivision
• All members of the association had to pay all the relevant costs
• The HOA constitution had to be approved by the municipality to ensure that it contained all the requirements of LUPO

Spatial Planning and Land Use Management Act Principles

Although the same conditions are made in CCT MPB for approval of subdivision of land as found in LUPO, there are significant additions and more detail regarding the conditions.

• The HOA will only become official on the transfer of the first unit arising from the subdivision
• The developer must call the first general meeting of members within a specific time-frame
• During the meeting, members must elect a board of trustees
• The developer must provide the municipality with a copy of the minutes taken during the meeting

Furthermore, the CCT MPB provides a list of provisions that must be found in the HOA’s constitution:

• The association must always act in the best interests of all its members
• The association must properly manage its communal facilities
• It must approve the transfer of properties within the association which empowers the association to withhold a clearance certificate
• The matter in which it enforces the terms of the constitution
• It must enforce all conditions made by the municipality when approving the subdivision
• It must provide for the transfer of land if the association is no longer functioning

Both CCT MPB and LUPO apply to all HOAs, including those established as non-profit companies or common law associations, regardless of the term “constitution” being used when referring to the association’s governance documentation.

HOA Governing Documents – Land Use Management in South Africa

There is currently no legal obligation for a HOA existing before the implantation of CCT MPB on 1 July 2015 to alter their governance documentation to include any provisions of the CCT MPB which it may lack.

However, it’s recommended that a property attorney takes a look at the documentation to ensure that its provisions are not in conflict with the new legislations.

Furthermore, by comparing pre-existing documentation with new provisions, HOAs may take advantage of new legislation, practices and technologies, including electronic means of communication.

The Community Scheme Ombud Service (CSOS)

The CSOS applies to all community schemes when it comes to dispute resolution. However, the CSOS requires that a dispute resolution process exists in the association’s governance documents.

This dispute resolution process must have failed before the CSOS can be approached for adjudication.

Therefore, HOA’s in the Cape Town area are advised to adjust the dispute resolution process found in their governance documentation to include adjudication by the CSOS as a possibility.

Van Deventers & Van Deventers Incorporated – Property Attorneys in Cape Town

For more information about land use management in South Africa and how it relates to home owners associations in the Western Cape, contact our attorneys.