An HOA can lawfully limit/refuse an owner to
purchase pre-paid water and electricity vouchers.
In
an earlier post, I mentioned that no-one but a municipality could switch off a
defaulting owner’s electricity, and that if a landlord did so, the tenant could
bring a spoliation application, forcing the landlord to restore the service.
What happens if the rules of a Homeowners
Association (‘the HOA’) provide that the HOA can deny services to an owner that
is in breach of its rules? The question is whether a party can
contractually agree to forfeit certain rights to his property.
The
court had to determine that in the case of Van Rooyen v Hillandale Homeowners
Association (1603/2014) [2014] ZAFSHC 226 (11 December 2014).
An
owner (van Rooyen) failed to pay certain penalties relating to the latter’s failure
to adhere to the HOA’s aesthetical rules. As a result, the HOA limited the
owner’s electrical supply. Van Rooyen approached the court in terms of the mandament van spolie for an order restoring
his access to and use of electricity.
The
court found that the actions of the HOA didn’t amount to spoliation:
‘I am satisfied
that the trust’s failure to adhere to the aesthetical rules triggered the
imposition of penalties which remained unpaid. The rules and the contract
entered into between the trust and the respondent, are binding on the
applicant. The respondent was entitled or had the power to refuse to sell
applicant prepaid water and electricity vouchers, or to limit the number of
units to be sold to applicant. Respondent’s conduct was therefore not unlawful
as it acted within the rules and the agreement it entered into with the trust.
The conduct of the respondent did therefore not amount to spoliation’.
The
court stated further that:
‘It is trite that parties are free to contract
as they please. The law permits perfect freedom of contract. Parties are left
to make their own agreements, and whatever the agreements are, the law will
enforce them provided they contain nothing illegal or immoral or against public
policy’.
On
this basis, it could be argued that a tenant can contractually agree to forfeit certain rights to his property,
in a lease, or an owner of a sectional title unit can be bound by restrictive
Conduct Rules.
