A reader who has bought a property in a development has been told that she will need consent from the homeowners’ association (HOA) to bequeath it to her daughter and would like to know if this is correct.
The house is to be built to certain specifications and she says certain rules are applicable regarding the appearance.
She has been assured that she has full ownership of the property and that it is not subject to a so-called “life right”. Accordingly, she has been told that she may sell it or let it to a tenant.
See the reader’s question here.
According to her, she has included the property in her will and has bequeathed it to her daughter.
An HOA administers certain requirements and restrictions in a defined parcel of land.
The relevant local authority, as a condition to the passing of transfer of land to a developer, prescribes that the development of the land is subject to certain specified restrictions.
The developer, in turn, is then obliged to sell the erven to third parties, again subject to these restrictions.
An HOA is a separate organisation that takes the form of a company or common law entity.
The body will establish house and conduct rules or a constitution to which the owners within the specified area are to adhere.
Such house and conduct rules are akin to the rules applicable within a sectional title scheme.
These often deal with the aesthetics of the dwellings and reasonable use requirements (such as noise limitations) so as to promote harmony within the neighbourhood.
The HOA charges a levy which is used for maintenance and upkeep within its jurisdiction.
To take ownership of a property within an HOA, one is obliged to subscribe to the rules imposed by that HOA.
The reader is correct in that full title to a property is more comprehensive than a life right and entitles you to sell and let the property.
It is, however, also correct that HOA consent will be required for her daughter to take ownership of the property.
As her daughter will become the owner of the property she, too, will be required to comply with the rules of the HOA.
Such compliance is determined by the provisions that are set out within the title deed to the property concerned.
To pass transfer of a property within an HOA, it is typically required that the new owner agrees to be bound by the rules of the association.
In addition, any outstanding levies in respect of that particular property are to be fully paid up.
Accordingly, those title deed restrictions confer a real right in favour of the HOA and are to be adhered to.
This is not to say that the reader requires HOA consent to draw up her will in such a manner as to bequeath the property to her daughter.
Instead it is to ensure that the aforementioned restrictions will become operative upon her death.
Upon the reader’s daughter agreeing to abide by the HOA rules, together with any title deed restrictions, transfer of the property concerned will be passed to her.
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