A recent media report told a tale (or should that be tail?) of woe of a dog-loving newly married woman, who was unable to move into her new husband’s home in a gated estate as they had previously planned, due to a provision in the Homeowners Association rules which prohibited dogs in the estate. In a move, most likely aimed at preventing the marriage “going to the dogs”, the husband decided to put his home on the market. He was again bitten by the restrictive nature of the rules, which according to the report do not allow owners to market or sell their properties other than through an agent approved by the Homeowners Association, with a fine of R5 000.00 being levied in the case of non-compliance with this rule.

The Sectional Titles Schemes Management Act prescribes management and conduct rules, which may be altered by a developer when submitting an application for the opening of a sectional title register or by special resolution of the body corporate, subject to the approval of the Chief Ombud. The Chief Ombud similarly has the power to regulate governance documentation on an ongoing basis, which would include all complexes or estates outside of a Sectional Title framework, where there is some element of communal living and sharing of space and facilities.

Although new rules and existing rules are subject to scrutiny and approval by the Chief Ombud who must be satisfied that the rules are reasonable and appropriate to the scheme, potential purchasers would be well advised, before signing an offer to purchase a property, to carefully scrutinise all management and conduct rules and satisfy themselves that there is nothing in the rules that would, in their view put them “on a short leash” and potentially have a negative impact on their lifestyle and expectations if they were to live in the complex or estate in which the property is situated.

A newly wed couple not being able to live in the marital home of their choice together with their precious pets is indeed sad, but as long as the correct procedures for establishing and amending the rules have been followed and the rules are lawful, reasonable and are applied consistently, owners would, in general, have no legal grounds to challenge them. Allowing individual owners to dictate variations to rules which adversely affect them in certain circumstances, as unfortunate as the results may be, would in all likelihood lead to the unravelling of harmonious communal living with the consequence of the undesirable effect of “the tail wagging the dog”.

Written by Steven Fisher, Fluxmans Attorneys