Hi we bought a property in Knysna and as...

Asked by Sb11gym on 15-05-2019 12:50:21
Question posted in the Property Law category relating to Western Cape
Question value: R 450.00

Hi we bought a property in Knysna and as we can only spend 3 months a year there we decided to ANBNB the property so it is not left vacant. The property is on a compound of 4 houses.  We have just received an email from the HOA of the estate stating that when we bought the property we should have been provided with a copy of the constitution which has a clause regarding short term letting, part of the clause states:

“...and/or any other similar scheme or arrangement may be conducted on the property nor shall a guesthouse or bed and breakfast be operated on the property without the prior written consent of the seller during the development period...”

There is also another clause which states:

”let his unit overnight for the period of seven (7) days unless such letting is done in accordance with the “letting pool” rules prepared by the Homeowners Association”

The email from the HOA states that we should refrain from further short term letting.

How do we stand legally on this as we were never provided with the constitution when we bought the property last year.  Can we ANBNB the property for periods of 7 days?

Regards,

Susan

Further information relating to Question:

I can send a copy of the constitution if needed.

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Information Requested by Lawyer

Posted by Att. Patrick on 15-05-2019 13:09:54

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship.

Are you able to send me a copy of the Constitution, because it should answer a lot of your questions.

Also, did you purchase the property from the developer, or from a person who previously purchased it from the developer?

Also, did your sale agreement make any reference to a HOA, or that the HOA had a constitution?

Were you advised, at any point in time, that there was a HOA?

Att. Patrick

Answer to the Question

Posted by Att. Patrick on 16-05-2019 16:10:06

Hi there again,

Okay, so you say that you purchased the property through an estate agent on behalf of the developer, and that there is no reference to a HOA or constitution in the sale agreement from the lawyers.

The only way that the developer can force you to become a member of the HOA, is if you agree to become a member, or there is a clause in the property's title deed which requires it.

You can't be forced to be a member of the HOA (and be subject to its rules) just because you purchased a properly within a complex of properties.

BUT, a developer can indirectly force you to become a member of the HOA by including such a clause in your sale agreement. i.e. "the purchaser agrees to become a member of the HOA".

e.g.  This is an extract from a Sale Agreement used by a property developer:

"It is recorded that the Property forms part of XXXXX development and that the HOA has been established for the purposes set out in the Constitution and the HOA’s Rules, copies of which are available at the sales office. The Purchaser acknowledges, accepts and agrees that he is aware that he and his successors in title shall be bound thereby including the following:

- Membership of the HOA established in terms of the conditions of establishment laid down by the Municipality of XXXXX in respect of the township of which this property forms part, is obligatory in perpetuity for each successive purchaser of the properties within the township.

etc, etc, etc ... "

The whole clause is 1 page, so I have not copy/pasted the whole thing - but it serves as an example of what you should expect to see.

The other way to FORCE you to become a member of the HOA is for the developer to register membership as a condition of ownership in your Title Deed. So, before you do anything else, check with the conveyancing attorneys for a copy of your Title Deed. If the Title Deed is silent on that point, then it won't apply to you.

If you didn't agree verbally or in writing, and such a clause is not in the sale agreement, and such a clause is not registered against the title deed of your property, then how can the developer insist that you are a member of the HOA.

Being introduced to somebody as "this is Bob, he is from the HOA" is not good enough. There needs to be a clear action on your behalf in terms whereof you agree to be a member of the HOA.

Finally, I see that the Constitution is listed as annexure C. Annexure C to what? Was it attached to the sale agreement? If yes, then you might have a problem. If not attached, then you should be fine on that point.

So, first get the Title Deed. If it appears there, then you're a member!

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.

Information provided by client

Thank you Patrick very informative, I am going to send you a copy of the Title Deed, could you have a quick look for me as some of the wording is in Afrikaans. I will also get a copy of the Deed of Sale, unfortunately we are in Portugal at the moment and the documents are in Knysna.

Answer to the Question

Posted by Att. Patrick on 17-05-2019 20:19:40

Hi again,

There is nothing in your Title Deed which relates to a requirement (condition) that you become a member of the HOA.

The Afrikaans section deals with requirements if you want to subdivide the ERF, which date back to 1984 - hardly anything to do with HOA requirements!

You should be able to read your sale agreement to see if there is any requirement.

If not, I would write back to the HOA and ask them to explain, with reference to a document, how they allege that you are a member of the HOA - because as far as you are concerned, you are not.

Patrick

Answer to the Question

Posted by Att. Patrick on 18-05-2019 10:43:11

There is nothing in your deed of sale which refers to the HOA.

If not, I would write back to the HOA and ask them to explain, with reference to a document, how they allege that you are a member of the HOA - because as far as you are concerned, you are not.

Answer Accepted

This answer was accepted on 18-05-2019 17:54:19

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