The following question was received:
What happens in the case where there is no mention of a HOA in the title deed or purchase agreement? Although it was a condition of the local council to become a member of the HOA once properties were purchased.
To which Heinie Barnard responded as follows:
I am of the opinion that the property is not part of the HOA. If the property is sold it will be sold as any other freehold property; because there is no condition in the title deed that a clearance certificate needs to be produced by the HOA. HOAs’ have different legal statuses in each province.
In terms of section 29 of the Land Use Planning Ordinance (Cape) No 15 of 1985, (LUPO) legal personality for HOA’s arises automatically. Nevertheless a constitution should deal with its status in greater detail, including related matters such as its location, formal name and domicilium citandi. Membership also arises automatically in terms of LUPO (Cape), yet it should be dealt with in the constitution for the sake of clarity and precision.
In other provinces, where no legislation endows an HOA with legal status, it is essential that membership be made obligatory by means of a suitably worded condition of title in each deed of transfer. Such condition of title also serves as a control mechanism for the collection of levies, ensuring that no transfers take place without levy clearance by the HOA. The Town Planning and Townships Ordinance 15 of 1986 (Gauteng) and the Division of Land Ordinance 20 of 1986 (Gauteng), neither contain any references to HOA’s nor do they attempt to regulate their affairs.
Ensuring that every person buying into the development is contractually bound to become a member of the HOA, subscribe to its founding document and abide by its decisions is typically accomplished in the sale agreement concluded between developer and purchaser which must (at a minimum) provide that:
- the purchaser agrees to become a member of the HOA and abide by its founding document, rules and decisions of trustees;
- no transfer of the purchaser’s stand shall be registered without the HOA first having issued a clearance certificate certifying that the purchaser has agreed to become a member and that all levies and other amounts due to the HOA have been paid or secured to the satisfaction of the HOA;
- the purchaser agrees that such conditions will be carried forward as conditions of title in the title deed to his stand, thereby binding subsequent purchasers of the stand.