Courts are frequently being called on to intervene in rows in gated communities, writes Noelene Barbeau.
Durban - Courts are frequently being called on to intervene in rows over money and abuse of power in gated communities, where untrained, volunteer directors are having to grapple with functions once the preserve of municipalities.
Durban High Court Judge Rashid Vahed was quoting an international expert, in a judgment handed down on Wednesday, where he found that the trustees of a Ballito estate home owners’ association had acted improperly.
The Seaward Master Home Owners Association had taken a decision to purchase a property within the estate, for R7.2 million, that belonged to the Destiny Life Church and wanted each of the residents to pay a special R12 000 levy to fund this purchase.
The judge found they had not followed the correct protocol, according to the association’s constitution, by changing the majority vote required, changing the notice period required for calling a special meeting and taking a decision to buy a property due to security concerns.
Vahed noted that gated communities were becoming increasing popular with safety and security concerns motivating an overwhelming majority of residents in such places to abandon the independence of freehold property ownership and instead subjecting themselves to “the will and dictates of others”.
He said when conflicts arose in these situations “the courts are frequently asked to intervene”.
He said this was not just a local phenomenon, but an international trend and quoted from an article in the GeoJournal by Professor Evan McKenzie titled: “Emerging trends in state regulation of private communities in the US”.
McKenzie said conflicts arose from having unpaid, untrained volunteer directors carrying out what were once municipal government functions, and concern financial issues as well as alleged abuses of power by association boards.
The case before Vahed involved about 700 residential units, which included freehold type homes, but the majority were owned in sectional title arrangements.
The six applicants are owners of individual units in the estate and are members of the association – the first respondent.
These home owners, represented by Justin Bagwandeen of Shepstone and Wylie, went to court in February when an interim order was granted calling for the association to call a general meeting where these applicants would present to the trustees an agenda and resolutions to be voted on by all the members.
Members would be properly informed about the association’s intentions.
The association also had to give proper notice to its members of this agenda and resolutions proposed.
The Registrar of Deeds was also interdicted from transferring the church’s property to the association until the outcome of this general meeting.
The association was ordered to pay the costs of this application on a scale between an attorney and client.
The matter then came before Vahed in May when the association opposed this rule sought and called for it to be discharged, but yesterday, the judge said this rule should stand.
At the association’s annual general meeting last year, the church had indicated its intention to sell.
A committee was appointed to prepare a business plan to establish the feasibility of buying the property.
According to the judgment, the association, however, ignored this initial intention and resolved to buy the property because another, “charismatic church” operating in Richards Bay had also put in an offer.
The association contended that the existence of a church within the estate meant that it lacked control of the movement of people into and on the estate.
It was argued that this resolution was voted on by the majority of its members and that it was acting within its purpose to provide a secure environment for its members through a gated controlled access to the estate.
They said the applicants were a handful of disgruntled members unhappy with the decision. The applicants argued that the trustees had acted unconstitutionally by signing an agreement of sale when they had no mandate or power to do so and passed an ordinary resolution to buy with a 61% vote when a 75% vote and a special resolution were required.
The association also felt that these residents had no right to insist that the court order it to call a general meeting to enable them to present an agenda and resolutions.
It argued these issues should have been raised by a single representative of their body corporate or private residential block.
The judge agreed with these residents and felt the method of funding the purchase and the decision taken about this was “irregular”.
Dr Mariam Seedat Khan, a clinical sociologist at the University of KwaZulu-Natal, concurred with Vahed that gated communities were on the increase and this, she said, was because of crime in the country.
“About 19 years ago, we would hear of a friend of a friend who was affected by crime, but today it has begun to affect us directly. Instinctively, as human beings we want to protect ourselves and our families and many people are opting for gated estates from a security point of view.”
On losing part of one’s independence as a home owner in these gated communities, she said one would have to conform to the rules and guidelines of such estates, for example, the aesthetics of one’s home or noise levels.
“A free standing home owner would, out of courtesy, speak to their neighbours about a party they would be hosting and the potential noise. There would be that flexibility. One does not have this in a gated community,” she explained.
According to research from Pam Golding Properties, there are about 6 000 closed communities and estates in South Africa, with 318 000 residential estate homes.
Dr Andrew Golding had told the Cape Argus, the Daily News’s sister paper, that estate living was a global phenomenon that first came to South Africa in the 1980s and started to catch on from the mid 1990s.
“Key factors contributing to the popularity of estate living are security and location – with those in and around major metropolitan areas or business hubs and close to good schooling proving among the most successful.
“Many buyers also perceive that the demand for this type of housing has created a sound investment,” he told the newspaper.
Recent court battles
* In September, Durban High Court Judge Peter Olsen granted an order calling for a three-year-old Saint Bernard, Theodore, to leave the Mount Edgecombe Country Club estate where he had been living with his owners for two-and-a-half years.
His owners, Pathmasolahani (Rita) Abraham and her son, Edward, had been involved in a lengthy legal battle with the estate’s management association to keep him. However, the judge said that the rule that only non-vicious, small breeds of dogs weighing 20kg or less when fully grown, was contractually fair.
He found that the directors’ power lay in a contract and the rules imposed by private contracts entered into voluntarily when electing to buy in the estate rather than elsewhere. He said the directors had a duty to impose the rules and there was no room, except for extraordinary cases where, for example, a blind person needed a guide dog, to ignore the agreed criteria.
* In May 2014, logistics company owner Shaun “Mack” Makadooj launched a high court application against the body corporate of Oyster Rock in Lighthouse Road, uMhlanga, about a dispute over balcony tiles in the flat his trust bought for R8 million in July 2013.
Makadooj had applied in September 2013 for permission to renovate the flat and got approval to make changes to the internal open-plan layout. He also wanted to replace the weather-beaten tiles on the balcony, but this was rejected.
His contractors had removed the tiles and he thought the managing agent would source new ones, which his contractors would lay at no cost to the body corporate.
However, in April last year, he received a letter from the body corporate referring to certain transgressions and threats to interdict and ban his contractors from the site until the patio tiles “unlawfully removed, are reinstated”.
An order granted by consent at that time allowed his contractors back on site, but Makadooj was interdicted from replacing the tiles until the dispute was resolved.
* In June, acting judge Ian Topping reserved judgment in a case brought to court by property tycoon Niemesh Singh against the Mount Edgecombe Country Club Estate.
The two locked horns over the estate’s “draconian” rules that allowed it to issue speeding fines, restrict the movements of domestic workers and, it was claimed, dictate which building contractors residents could use.
The estate had argued that when the home owners chose to purchase property within the estate and become members of the association, they agreed to be bound by the association’s rules imposed by its directors and a contract came into existence between the association and these home owners.
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