A reader who wants to make alterations to his freehold property, which is subject to the authority of a Home Owners’ Association (HOA), is looking for clarity regarding his rights.
He would like to enclose his patio and braai area but the HOA say he is required to obtain their consent before making any alterations or improvements.
The reader understands that certain restrictions are in place for aesthetic purposes but feels that, rather than having to get consent, certain guidelines should be put in place that owners can follow.
He believes that, as it is his land, he should have the freedom to do whatever he chooses to within the guidelines.
See the reader’s question here.
The Home Owners’ Associations often come about as a result of a stipulation by the local authority when selling land to a developer.
Upon the sale of the plot to a purchaser within a development, a restrictive condition is included in the title deed relating to the nature of the complex and obliging the owner to comply with the rules imposed by the HOA.
Such rules are set out in the constitution of the HOA and the complex, which deals with aspects such as building restrictions, financial matters, meetings, voting and the like.
As long as you remain an owner within the complex, you are obliged to comply with the conditions of the constitution.
While a constitution may set out certain guidelines relating to aesthetics and the like in respect of buildings and improvements, it is normal to include that the consent of the HOA should be obtained before the owner does any building work or improvements.
Although guidelines may be of some assistance, the interpretation of the practical application of those guidelines may be extremely subjective to suit the owner.
Even if the owner technically complies with such guidelines, the resultant aesthetics may not fit in with the balance of the structures and/or buildings within the complex.
It is accordingly clear that, notwithstanding the freehold nature of the ownership, the rights associated with such ownership are not absolute in permitting the owner to do what he wants to with the property.
The constitution of the HOA will often specifically address certain aspects relating to building works.
This can include what materials are permitted in the construction to ensure the harmonious appearance of all buildings within the complex.
The provisions of the constitution may even go so far as to dictate the colours that owners may paint certain structures built on their land.
These provisions often also extend to any other works that an owner may wish to effect on his land.
This may include improvements such as decking, fencing, pagodas, boundary walls, paving and materials used for surfacing of driveways and similar areas.
Any such alterations or improvements require the consent of the HOA prior to the owner taking any steps to effect any such building works.
In purchasing the land within the complex, the reader agrees to abide by the constitution of the HOA.
Accordingly, it is always prudent for any potential purchaser to obtain a copy of the constitution prior to making any offer to purchase.
Alternatively, he can make an offer to purchase subject to his approval and acceptance of the provisions of the constitution.
In closing, the reader should obtain a copy of the constitution, should he not have done so already, and determine the requirements to carry out the intended works on his land.
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