“….. parties are free to contract as they please. The law permits perfect freedom of contract. Parties are left to make their own agreements, and whatever the agreements are, the law will enforce them provided they contain nothing illegal or immoral or against public policy” (extract from judgment below)
Be warned – whether you buy into a residential complex or rent a house in one – the High Court (in the case of Van Rooyen v Hillandale Homeowners Association) has again upheld the right of Home Owners Associations (HOAs) to enforce their rules and regulations.
Owner defaults – tenant suffers
In this particular case a homeowner/landlord failed to pay fines imposed by the HOA for breach of its aesthetic rules. The HOA then restricted the tenant’s right to buy the electricity and water vouchers he needed to top up his pre-paid meters. The tenant approached the High Court for assistance, citing amongst other things his constitutional and statutory rights to basic services.
Critically however, both the owner and tenant had agreed to be bound by the HOA’s rules, which included the provision that “no electricity shall be provided or sold to any occupier or owner of any erf in respect of which levy payments are outstanding for a period of 60 days or longer, until such time as all outstanding levy payments are paid in full”. The tenant, held the Court, had freely agreed to be bound by the rules, and accordingly the HOA had acted within its rights.
When you buy or rent in a complex, read and understand all the rules and regulations – you are bound by what you agree to!
A note for HOAs
Homeowners should always be obliged to become and remain HOA members, bound by your rules and regulations. Ensure that owners cannot give occupation to anyone else without the occupier likewise agreeing to be bound.