All community schemes have two things in common: levies and rules. However, not everyone knows that scheme rules and restrictions on what owners can and can’t physically do with their properties must be in line with corresponding local municipal rules and regulations.
Zoning and town planning compliance
The design of a community scheme is purpose driven, therefore it must match municipal zoning requirements, which can restrict subsequent changes to the development.
Town planning dictates physical aspects of the scheme that the scheme members cannot alter. While a sectional title body corporate can, for example, create exclusive use rights over parking bays, it cannot do so in respect of the parking bays allocated as visitors parking because it is a town planning requirement that a certain proportion of the available parking being reserved for visitors.
Building lines restrict the location of physical changes and additions owners might want to make to their properties.
While it might ordinarily be possible to obtain departures from zoning and town planning requirements, the rules of community schemes usually prevent an owner making changes that require departures.
Overlap of scheme governance documents with By-laws
There is very often an overlap of community scheme rules and municipal regulations. Municipalities have by-laws that deal with health and the environment, keeping of animals, and alterations to and additions of buildings. Community schemes have parallel rules on overcrowding, keeping of pets, and renovating properties in the scheme.
While community scheme rules can be more restrictive than the corresponding municipal regulations, they cannot be less so. For example, if the animal by-law allows two dogs per property, the community scheme can restrict the number to one (or even none) but cannot allow three or four. Similarly, the scheme alone cannot allow an owner to build a granny flat over the building line of their property as set in the town planning scheme, the owner must also get the municipality to condone the departure.
HOA specific issues
HOAs consist of a collection of individually owned erven. Usually the development is established by a subdivision of a parcel of land into smaller portions appropriate to the nature and purpose of the development.
The municipality’s approval of the subdivision of land is conditional on the establishment of a homeowners’ association with governance documentation that makes specific provisions. Examples are that the owners of the properties concerned be members of the association, that the association is responsible for the maintenance and control of the communal property and infrastructure, and that it must collect contributions from the members for this purpose.
The governance documentation, constitution if the association is established in terms of the common law or memorandum of incorporation (MOI) if it is a company, must be submitted for municipal approval along with all the other documentation relating to the approval of the subdivision of land. In order to ensure that the HOA’s governance documentation retains these provisions, the municipality will require that it approve any changes. This means that members are restricted in the changes they can make to their scheme.
Owners and those entrusted with the day to day management of community schemes need to remember that the local municipality by-laws and regulations apply to the management of the scheme, not only the scheme governance documentation.
Article reference: Paddocks Press: Volume 11, Issue 09, Page 02.
Anton Kelly is an extremely knowledgeable specialist Sectional Title and HOA teacher and consultant. Having been the lead teacher on all the Paddocks courses for the last 7 years, Anton lives and breathes Sectional Title and HOA law, all day every day. There are not many issues he hasn’t come across before.
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