How to get out of fines is­sued by your HOA

George Herald - Private Property - - Property News -

Upon check­ing your mail­box, which is usu­ally empty thanks to the in­ven­tion of e-mail, you're sur­prised to find a white en­ve­lope with the sig­na­ture of your Body Cor­po­rate and your name just be­low it. Con­tained therein is bold red type­face no­ti­fy­ing you of a R500 fine for ex­ceed­ing the 35km/hour speed limit within the es­tate. Af­ter the wave of panic that fol­lows get­ting caught red-handed has abated, a new sense of un­jus­ti­fied in­dig­na­tion fol­lows:

What right do they have to is­sue fines? Well, ac­cord­ing to the law, the Sec­tional

Ti­tle Act gives them ex­actly that right in the form of man­age­ment and con­duct rules. "As with most terms and con­di­tions sheets, most home­own­ers blindly sign these doc­u­ments with­out tak­ing the time to con­duct a close read­ing of the reg­u­la­tions and con­se­quent reper­cus­sions con­tained therein. In the same way that home­own­ers can eas­ily vi­o­late these rules with­out know­ing it, Home Own­ers As­so­ci­a­tions can also get away with is­su­ing fines for things that are not stip­u­lated in the rules of the sec­tional ti­tle com­plex," says Adrian Goslett, re­gional di­rec­tor and CEO of RE/MAX of South­ern Africa.

The first thing home­own­ers should do when is­sued with a fine by their HOA or Body Cor­po­rate is to get hold of the lat­est copy of the rules. "A copy of these rules should be read­ily avail­able to all res­i­dents. If you were not in­formed of these rules upon pur­chas­ing within the es­tate, or if amend­ments were made to the doc­u­ment with­out a res­i­dent's meet­ing to dis­cuss the pro­posed changes, then you might be able to make a case for hav­ing the fine scrapped," says Goslett.

When it comes to speed­ing fines specif­i­cally, res­i­dents should also find out whether the roads within the es­tate are reg­is­tered as pub­lic roads or pri­vate roads. If pub­lic, then HOAS will need to have re­ceived per­mis­sion from the rel­e­vant MEC in terms of sec­tion 57(6) of the NRTA to put up their own road signs and en­force their own traf­fic fines. If they've failed to do this, then they may not is­sue fines. How­ever, all other reg­u­la­tions re­gard­ing pub­lic roads are still en­force­able. If the roads are reg­is­tered as pri­vate roads, then the HOAS rules of con­duct are the reg­u­la­tions that gov­ern these roads and you will have to ad­here to them.

But, just as an of­fi­cer fires a warn­ing shot into the air to try and get the per­pe­tra­tor to give up be­fore any­one gets hurt, HOAS and Body Cor­po­rates are re­quired to is­sue warn­ings be­fore they may is­sue fines.

"If you re­ceived no such warn­ing be­fore re­ceiv­ing the fine, then your body cor­po­rate is act­ing pre­ma­turely and you are jus­ti­fied in re­mind­ing them of the due pro­to­col. Ac­cord­ing to the Act, the ac­cused res­i­dent must also be in­vited to at­tend a meet­ing with the trustees if the prob­lem per­sists af­ter the first warn­ing has been is­sued. At this meet­ing, the res­i­dent may plead his/her case and present ar­gu­ments for why fur­ther ac­tion should not be taken. If you believe that you have been treated un­fairly, then your best line of de­fence would be to ar­gue that what­ever rule you may have bro­ken is not rea­son­able, fair and equally ap­plied to all own­ers in the com­plex, as these are the legally bind­ing pa­ram­e­ters for set­ting up rules within sec­tional ti­tles," says Goslett.

The only al­ter­na­tive ex­cuse against Hoais­sued fines can only be raised by ten­ants rent­ing within the es­tate. "Gov­ern­ing bod­ies of sec­tional ti­tles may only is­sue fines to the owner of the prop­erty and not to the ten­ant that is cur­rently oc­cu­py­ing it. The land­lord may stip­u­late in the rental agree­ment whether the ten­ant will be li­able for such fines, but the body cor­po­rate can­not take it upon it­self to de­cide this," Goslett ex­plains.

Goslett sug­gests that home­own­ers stay in­formed by sub­scrib­ing to es­tate news­let­ters and by at­tend­ing the reg­u­lar res­i­dents' meet­ings. "In­for­ma­tion is power. The less in­formed you choose to be, the eas­ier it will be to get taken ad­van­tage of," he says.

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