The Nature of Community Living Scheme Rules – Public or Private? | Legal Articles


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The Nature of Community Living Scheme Rules – Public or Private?

At the centre of most disputes in community living schemes is the issue about the interpretation of and nature of the Conduct Rules. These rules can be by the Body Corporate or the Home Owners Association. Part of the responsibilities and/or jurisdiction of the Community Schemes Ombud Services (CSOS) include the vetting of Conduct Rules in as far as there is an obligation for these to be subservient to tenets of fairness, legality, and reasonableness.

Community living schemes - conduct rules

Can the Body Corporate / Homeowners Association enforce rules?

In many of these disputes, the disagreements surround issues of how far the Body Corporate/ Homeowners Association can validly enforce the rules. It is vital to bear in mind three principles right from the beginning.

  • Voluntary

Firstly, that community living schemes are voluntary and those who opt to purchase and/or live in the scheme do so voluntarily.

  • Contractual

Secondly, the Conduct Rules in the schemes are contractual in nature, as was held in the case of Bushwillow Park Homeowners v Fernandes & Another (2014/31526) (2015) ZAGPJHC 250 and therefore people who opt to purchase and live in these schemes agree to be bound by the Rules in those schemes.

  • Consent

Thirdly, enforcement authority is given to the Body Corporate by consent of the owners in that scheme to be bound by the rules as adopted by the Annual General Meetings.

In the case of Mount Edgecombe Country Club Estate Management Association 2 (RF) NPC v Singh & Others (323/2018) (2019) ZASCA 30 the Court upheld that roads in a home owners scheme (estate) were not public roads but private roads owned by the Home Owners Association (HOA). Therefore the HOA could set a speed limit or even determine the parameters of use on that road. Guests in the estate use such roads with the consent of the owners and the HOA in that estate, and therefore the association’s decisions with regards thereto were private and not public.

To cement the principle that Conduct Rules in community schemes are private in nature, the Court in Khyber Rock v 9 of ERF 823 Woodmead Extension 13 CC (2007) ZAGPHC 137 upheld that Trustees of Homeowners Associations are not bound by the Promotion of Administrative Justice Act (PAJA), generally speaking, but where the decision of a Body Corporate or Home Owners Association is exercised under public power or public function, that decision can be reviewed under PAJA.

If the decision is exercised under private capacity and nature which Conduct Rules generally are in community schemes, scrutiny of that decision can be under the common law rules of review much alike to the PAJA process.

Despite the above, private decisions of community scheme associations can still be reviewed by the Courts where it is alleged that they fail to meet the standards of fairness, reasonableness and legality.

Van Deventer & Van Deventer Attorneys Johannesburg & Cape Town

The process above is riddled with legal hurdles that are not easily conquered with legal experience, it is vital to seek expert legal advice. At Van Deventer & Van Deventer Attorneys, our attorneys are ready to assist in all matters relating to Property Law. Our approach is comprehensive and our top most priority is to legally safeguard your interests.

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