This form of living is growing in demand and popularity mainly for reasons of affordability, security and a general preference for communal living.
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1 1 SECTIONAL TITLE AND HOME OWNERS' ASSOCIATIONS INTRODUCTION Clients often ask us to explain how and why a Home Owners' Association (HOA) is established and how they are distinguished from sectional title schemes. This article endeavours to address these issues and also why a developer may prefer developing a home owner's association development or in some cases a combination of both as opposed to a sectional title scheme. BACKGROUND "Cluster housing" as we know it today is communal living in dwellings in close proximity to one another established by a developer, and where there are conditions restricting ownership rights to varying degrees imposed either by the developer or a local authority or by both. These developments can be small consisting of even just two dwellings or consisting of a large number of dwellings. There is often the right for additional development. The size of the development be it HOA or sectional title (or a combination of both) is in fact only limited by the financial resources and concept of the developer and the number of units permitted by the local authority. This form of living is growing in demand and popularity mainly for reasons of affordability, security and a general preference for communal living. For many years people have lived and continue to live in cities, boroughs or villages where there are laws and by-laws of a restrictive nature dealing with such issues as town planning, traffic, essential services, noise control, pollution and the like restrictions which restrictions can be said to be beneficial and necessary for harmonious living. HOME OWNERS' ASSOCIATIONS (HOA) There are basically two types of HOA. The first is where the developer forms a non profit company under the new Companies Act No. 71 of 2008 which will have a Memorandum of Incorporation (MOI) registered with the Registrar of Companies and would make in addition relevant house rules authorised by the MOI. This act came into force on the 1 May The house rules as designed by the developer would deal with the control, management, administration, and running of the development and also the use and enjoyment of the common property held by the HOA. (Formerly HOAs were established as section 21 companies not for gain under the old Companies Act 1973 with a Memorandum and Articles of Association. These need to be changed so as to comply with the new Act.) The second is where the developer forms a common law association with its own constitution signed by the developer alone or with others as the founders. There would also be separate house rules authorised by the constitution. These HOA s are not governed by the provisions of the Companies Act or Sectional Title Act. The procedure in both cases would be that a developer who owns a tract of land would arrange through the local authority for subdivision of the land into separate erven. The local authority in granting the subdivision will invariably impose certain restrictions to the effect- that the development be managed by a HOA which is legally independent of its members;
2 that each and every owner become a member of the HOA ; that an owner cannot dispose of his or her plot without the consent of the HOA unless, inter alia, the levies are all paid and the purchaser has agreed to become a member of the HOA; that these last two restrictions be entrenched in the owner's title deeds; that the HOA shall own the land on which are constructed the infrastructure such as streets, pavements, street lighting, golf course, club house and other recreational amenities and shall be responsible for the repairs, upkeep and maintenance thereof. The HOA formed by way of a common law constitution (by its very nature as it is not bound by the provisions of the Companies Act) gives a developer a wider and freer form of development in such matters as to architectural design and construction and can create such restrictive conditions as he feels necessary and beneficial for the better running of the development. This form of development can be more attractive and affordable to a wider purchasing market. The owners will be required to pay a monthly levy to the HOA for the upkeep, repairs and maintenance of the common property and facilities thereon besides any other administrative expenses, and owners will have right of access thereto and the use and enjoyment of the amenities thereon in accordance with the provisions of the house rules. To keep the levies affordable a once off payment by a purchaser is made into what is usually called a levy stabilisation fund or reserve fund to cover when required the upkeep and repairs of the infrastructure and amenities on the property owned by the HOA and any other expenditure of a capital nature required thereon. 2 SECTIONAL TITLE DEVELOPMENT A sectional title scheme is established in terms of the Sectional Titles Act No 95 of 1986 (the Act). A developer who owns land zoned for sectional title development after his building plans have been approved by the local authority begins to build his units. When the buildings reach say window or roof height the developer engages an architect or land surveyor to prepare the relevant sectional title plans for approval by the Surveyor General. The developer may create exclusive use areas such as patios, parking bays, yards, or gardens which are created either in the sectional plans or by way of the Rules. After approval of the sectional plans by the Surveyor General the developer will instruct a conveyancer to open the register. The sectional title register can be opened in the Deeds Office with a minimum of 2 sections. If there have been sales of units and sectional plans for them have been approved by the surveyor general, these can be registered simultaneously with the opening of the register. Also simultaneously with the opening of the sectional title register, the developer depending on the size of his development and financial resources may reserve the right to extend the scheme in terms of section 25 of the Act. With this right to extend the scheme the developer can build additional units himself on the land, or
3 can sell a portion or portions of the real right to extend to a purchaser and cedes the right to the purchaser by way of a notarial deed of cession of the portion of the real right. Each portion represents a portion of land and is demarcated on a plan drawn by a land surveyor and approved by the Surveyor General. The purchaser will attend to the financing and building of the unit himself. There is usually a time stipulated by the developer in the sale agreement within which the purchaser must build and take steps to incorporate his unit into the sectional scheme. Furthermore sections 25(5A)(a) and (b) of the Act stipulates that the developer (who is now the purchaser being the holder of the real right to extend) must after completion of the unit take steps to have sectional plans prepared and incorporate the unit into the scheme. If the developer/purchaser fails to do so within 90 days of completion of occupation of the unit levies will be payable to the body corporate as if the unit had been incorporated into the scheme. Once the sectional title register has been opened the sectional title scheme is governed by the provisions of the Act, the statutory Management and Conduct Rules. The body corporate of a sectional scheme comes into existence from the date on which any person other than the developer becomes an owner of a unit. Every owner of a unit is automatically a member of the body corporate and remains a member for as long as he is an owner. He has no election not to be a member of the body corporate. The body corporate at its AGM appoints the trustees, and until the first AGM, all owners are deemed to be trustees including the developer. The Trustees if authorised by either the Management or Conduct Rules may make house rules provided these do not conflict with the Act or the Rules. A developer cannot alter the statutory Management Rules when opening the register except in respect voting rights and levy calculations. He can alter the conduct rules without restriction. A body corporate when established can change the Management Rules by unanimous resolution provided not less than 30% of the units are owned by persons other the developer; and the Conduct Rules by special resolution. The developer who has reserved to himself the right to extend the scheme to build additional units is obliged by the Act to lodge in the Deeds Office plans drawn to scale showing the design, elevation and position of the additional buildings and he has to keep to this when building the additional buildings nor vary the type of building materials except under certain circumstances where strict compliance is impractical. Any owner who is prejudiced can apply to court for relief. This restriction on architectural design and construction is one of the major reasons why a developer may choose to go the HOA route which gives the purchaser a wider selection of styles. The trustees estimate annually the levies and on approval at the AGM by the body corporate are responsible for the collection thereof from owners. The body corporate is responsible for the maintenance, repair and upkeep of the common property and if additional funds are required for repairs or maintenance to the common property these could be obtained by the trustees imposing a special levy. OWNERSHIP Sectional Title Scheme In a sectional title scheme the Act confers on an owner the right to the ownership of the interior of the section measured from the median line of the floor, external walls and ceiling and an undivided 3
4 share in the common property. This could also include a patio, balcony or other projection which is permitted by the Act to be sectionalized. The owner's share in the common property is determined by the participation quota of the unit. The owner is issued with a title deed in his/her name which is registered in the Deeds Office. An owner therefore owns the section and an undivided share in the common property. The common property therefore consists of the land and those parts of buildings not held by an owner. Part or parts of the common property may be held by an owner as an exclusive use area or areas such as a parking bay, garden, patio or other permitted use which the owner would hold by way of a notarial deed or in terms of the Rules. Home Owners' Association (HOA) In a HOA the owner has full ownership of the plot of land and the buildings thereon. No part of his plot or building is common property. The owner likewise is issued with title deeds in his or her name and registered in the Deeds Office. The owner would have a right in common with other owners as set out in the rules to the use and enjoyment of any land owned by the HOA on which exists the infrastructure services such as streets, walkways, parking, lighting, golf course, and other recreational amenities. The owner is solely responsible for the maintenance, upkeep, repairs, insurance, rates and other outgoings in connections with his or her land and buildings thereon. SIMILARITIES AND DIFERENCES In both the owners pay a levy, the sectional title owners to the trustees of the body corporate and the owners in a HOA to directors of the HOA. The owners in a sectional title scheme are governed by the Act, the Management and Conduct Rules. If authorised the trustees may impose house rules. The owners in a HOA are governed by the provisions of the MOI and any house rules made thereunder; and if the HOA is established under a common law constitution under the provisions its constitution and any house rules made thereunder. In a HOA of both these types and in certain sectional title developments there are imposed often a further levy called a levy stabilization fund or levy reserve fund to cover when needed the expenditure of a capital nature on the common property held by the HOA. In a sectional scheme the trustees may impose a special levy on owners to cover expenditures not included in the budget. HOA DEVELOPMENT WITH A SECTIONAL TITLE SCHEME A developer may set up a development which consists of a home owners' association with a sectional title scheme as part of it. This decision would be made by the developer at the time of establishing the HOA. This raises the question whether there would be any conflict in the running and management of the two schemes. 4
5 The Sectional Title Act provides in terms of Regulation 30 that if the sectional title scheme contains a condition That restricts the transfer of a unit without the consent of a HOA, That all owners must become members of a HOA, and That the functions and powers of the body corporate have been assigned to the HOA, then the Sectional Title Management and Conduct Rules do not apply. In their place the provisions of the HOA's MOI or common law constitution and the respective house rules would apply. This therefore would alleviate to a large extent the possibility of any conflict and misunderstanding arising in the running of the two schemes as they would be managed by the same set of rules. CONCLUSION We have observed that certain HOA are very strictly applying their rules and that sometimes this has the effect of holding up transfers as, for example, they are requiring that all Municipal Plans are brought up to date before consenting to a transfer. It is therefore important and advisable that an agent and the purchaser investigate the relevant provisions of the documentation applicable to the scheme in which the purchaser is interested prior to signing any sale agreement. Also that the purchaser satisfies himself as to the sound financial standing of the scheme and that it is being well managed. 5 Written by Rob White
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