As anyone involved in managing an estate or residing or working in one knows, estates can present a challenging legal environment. Here are just some of the legal issues that estates may find themselves having to deal with in 2018 many of which are not new but may require a fresh approach in dealing with them in 2018 as our law evolves and estates continue to grow in popularity and size:
Regulation of drone use
Whilst legislation is in place governing drone use in South Africa many estates have not formulated rules or policies dealing with drone use in and over estate properties. Issues surrounding infringement of rights to privacy and aggrieved property owners legal remedies are likely to continue to arise and will need to ultimately be addressed by way of the formulation of suitable drone rules or policies to which residents agree to adhere.
Regulation of the operation of estate agents
The right to operate within estates and how estate agents conduct business within estates is likely to continue to be a potential area of conflict within those estates that endeavour to regulate the operation of estate agents. Regulation differs from estate to estate and may take the form of prescribing sales and leasing processes, standards of conduct of estate agents, accreditation or appointment criteria, different types of fees and contributions payable by estate agents and limiting the number of estate agents or agencies having the right to operate within an estate. The extent to which this may be done in each instance must be determined with reference to the rights afforded to the relevant home owners association or body corporate in terms of the applicable estate governance documentation. Conflicts are likely to continue to prevail particularly where estates applying such restrictions seek to preserve the status quo whilst estate agents seeking to enter the estate market face barriers to entry posed by approvals processes and requirements.
Control of conduct on estate roads
Last year closed with a High Court appeal decision declaring certain home owner’s association rules regulating conduct on privately owned estate roads invalid particularly the determination of appropriate speeds and signage and the imposition of penalties for speeding contraventions. The CSOS has also followed suit. The Supreme Court of Appeal’s clarification of the issues may be received during 2018 but in the interim the enforcement of roads rules will remain controversial and persons penalised for speeding contraventions no doubt will continue to seek to avoid penalties and attempts by home owners association to control conduct on estate roads.
Appropriate management of disputes and documentation
The Community Schemes Ombud Service (the CSOS) is now a fact of life in community living in South Africa. Amongst other functions, the CSOS serves as a repository of estate governance documentation and dispute resolution body as well as being responsible for the approval of Management and Conduct Rules in sectional title schemes. Home owner’s association documentation is not subject to scrutiny and approval by the CSOS and developers and members are free to adopt and amend applicable governances without reference to the CSOS. It is only during the dispute resolution process or the sectional title rule approval process that the views and practices of the CSOS are revealed and in many instances these may conflict with provisions contained in an estate’s governance documents or the established practices oestate. Decisions of the CSOS should be closely monitored and taken into consideration as estates evolve to ensure that estate documentation and practices keep pace with the prevailing attitudes of the CSOS and standards generally applied by them. The same would apply to court decisions and legislative changes to ensure that documentation remains up to date and legally enforceable.
AirBnB and other short term letting issues
With the proliferation of internet marketing platforms such as AirBnB and the income earning opportunities they present, many estates will continue to have to grapple with how to deal with the challenges presented by short term letting and striking an appropriate balance between owner’s rights and the broader interests of the community scheme to preserve the safety, security and amenities of its residents. Privacy and nuisance issues will no doubt continue to remain at the forefront. It remains critical that in the first instance residents and persons wishing to buy into estates with the intention of buying to let carefully consider all relevant town planning scheme regulation and by-laws, title deed restrictions and estate governance documentation to determine the extent to which short term letting is restricted or controlled.