By The Paddocks Club Team

Below are examples of two questions on the Discussion Forum on Paddocks Club. We want to show what is available to our Community Members!

Votes in duet schemes
Member’s Questions:
In a duet scheme, does the owner with the larger participation quota always have more voting powers than the owner with the smaller participation quota?

If that is the case, does this mean that one owner take all the decisions about the scheme?

 
Graham’s Answer:
 
No, the owner with the larger participation quota cannot take all decisions alone.
 
It is a real problem that the prescribed rules do not make special provisions for duets.

In my experience what normally happens is that the owner with the smaller participation quota, realising that he or she will be outvoted on any ordinary resolution, frustrates the process by refusing to participate in normal meeting and voting procedures.

In the end all joint decisions must made by consensus, and when this can’t be achieved there is a deadlock. If the two owners fall out, as is not unusual, the Act and the rules go out of the window and the parties act as if there were no body corporate, often getting separate insurance and doing their own maintenance. If one or both of the parties suffer substantial prejudice, the only answer may be to get the High Court to appoint an administrator, but the high costs associated with this process mean that it seldom occurs.

 

Can HOA control speeding/parking on public road in complex?
 
Member question:
The constitution empowers the trustees to formulate House Rules, but the road running through the complex is a public road.

Can the trustees make house rules to prevent owners  parking trailers and caravans in front of their homes and impose a speed limit?

The intended rules pertain to the orderly use of the road, not to the detriment of other owners in the complex.

But some of the owners are of the view that it is a public road and that the trustees are not authorised to make such house rules?


Graham’s response:


A public road vests in the local municipality, which has the inherent jurisdiction to apply the terms of the applicable traffic ordinance and bylaws.

Could the HOA have concurrent jurisdiction over a public road that is within its area of jurisdiction? I suggest you should look at the text of the provision in the HOA’s constitution that gives it the right to make rules. Normally this text, read with the definitions, will limit the HOA’s rule-making jurisdiction to the land registered in its name, which would exclude the public roadway.

On the one hand the HOA’s agents have no authority under the public law to take charge of or control a public roadway. On the other, I suppose that it is possible that the homeowners’ constitution, which is a contract between all owners in the HOA, could stipulate that an undesirable action on a public roadway within the estate, such as speeding or long term parking of vehicles such as caravans, constitutes a breach of the HOA’s rules.

Article reference: Paddocks Press: Volume 9, Issue 8, Page 5.

 
Professor Graham Paddock, Anton Kelly and Carryn Durham are available to answer questions on the discussion forum for Community Members of Paddocks Club. Get all your questions answered by joining Paddocks Club at www.PaddocksClub.co.za.

This article is published under the Creative Commons Attribution license