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March 12, 2016

When it is lawful for a HOA to restrict an owner’s rights to water and electricity?

This issue was considered in Van Rooyen v Hillandale Homeowners Association.

In an application based on the mandament van spolie, the main issue to be decided was whether the respondent’s conduct in limiting / refusing applicant to purchase pre-paid water and electricity vouchers was lawful.

The applicant leased premises situated within an estate in which the respondent was the homeowners association. An interim order had been granted in the applicant’s favour, directing the respondent to restore the applicant’s access to its internet site to be able to purchase prepaid water and electricity for use at the premises. The applicant sought confirmation of that order.

Held that the rules of the estate were binding on all occupiers. In terms of the rules, no electricity would be provided or sold to any occupier or owner of any erf in respect of which levy payments were outstanding for a period of 60 days or longer, until such time as all outstanding levy amounts were paid in full. That provision led to the respondent’s restricting the applicant’s water and electricity supply. The main issue that had to be determined was whether the respondent’s conduct in limiting / refusing applicant to purchase pre-paid vouchers was lawful.

The respondents disputed the applicant’s locus standi as the applicant was the lessee and not the property owner in respect of the premises occupied by him. However, the Court found that rules of the respondent relating to the provision of water and electricity were not only applicable to an owner with whom a contract had been entered into but was also applicable to occupiers who were not owners. The applicant had a direct interest in the matter and could therefore approach the Court for relief.

The next question was whether the applicant’s rights were capable of protection by a spoliation order. The respondent argued that the applicant had a personal right against the respondent to sell him water and electricity subject to the conclusion of a contract, and that such a personal right was not protected by the mandament van spolie. The Court held that the rights of an occupier of a building to his water have long been protected by our courts by the mandament, irrespective of the contractual relationship between the parties. The Court was satisfied that the applicant did not simply have a personal right against the respondent.

Finally, the Court considered whether the restriction of his rights to water and electricity was lawful. One of the conditions of title agreed upon by the property owner, and registered against the title of the property, were that the owner would be bound by the statutes and rules of the respondent. 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. In this case, the applicant had the choice of not renting the property if he was of the view that the applicable rules were inconsistent with his rights. The respondent’s conduct was not unlawful as it acted within the rules and the agreement it entered into with the property owner. The conduct of the respondent did therefore not amount to spoliation.

The interim order was discharged.

March 08, 2016

Barking dogs driving you mad?

The sensible thing to do is to chat to your neighbour, over a cup of tea, and explain that the dog is preventing your baby from sleeping (or whatever) and ask him or her to do the neighbourly thing. One solution (if the neighbour works all day and the dog is bored or afraid) is to fit a cold air spray bark collar. All vets sell these devices and they are not at all cruel. Perhaps the dog needs to see an animal behaviourist? He or she will see why the dog barks excessively (lack of exercise, lack of stimulation, separation anxiety, protecting territory, etc.) and recommend a solution.

If that does not help or if the neighbour is indifferent or defensive (and refuses to make the nuisance go away) you should report the matter to the authorities (the local authority and, perhaps the SPCA) and, that failing, contact your lawyer, who will have to send a threatening letter or even go to court for an interdict.
Disciplinary procedures vary from district to district. If you go the legal route, you will start a feud, so, wherever possible, try and settle matters amicably.

In the Cape, owners may not keep any dog that barks for more than six minutes in any hour or more than three minutes in any half hour. An official may order the owner to take necessary steps to stop the disturbance and owners are required to keep the dog under proper control. Gauteng hasn’t gone that far.
The SA Noise Control Regulations provide that no person shall:

·    make, produce or cause a disturbing noise, or allow it to be made, produced or caused by any person, animal, machine, device or apparatus or any combination thereof;

·    operate or play, or allow to be operated or played, a radio, television set, drums, musical instrument, sound amplifier, loudspeaker system or similar device producing, reproducing or amplifying sound so as to cause a noise nuisance;

·    offer any article for sale by shouting, ringing a bell or making other sounds or by allowing shouting, the ringing of a bell or the making of other sounds in a manner which may cause a noise nuisance;

·    allow an animal owned or controlled by him or her to cause a noise nuisance.

If a noise emanating from a building, premises, etc., is a disturbing noise or noise nuisance, the authorities may instruct in writing the person causing such noise to discontinue or cause to be discontinued such noise within a period stipulated in the instruction. Failing response (in the case of e.g. power tools, musical instruments or animal) the instrument, equipment or animal can be confiscated, or impounded.
Any person who contravenes or fails to comply with a written notice shall be guilty of an offence and liable on conviction to a fine not exceeding R20 000 or to imprisonment for a period not exceeding two years, or to both such fine and such imprisonment. In the case of confiscated items, the court may declare any vehicle, power tool, musical instrument or equipment, or animal forfeit to the local authority.