The importance of the MOI

March 2016 Residential Estate (Industry), Security Services & Risk Management, Editor's Choice

Despite the fact that residents agree to abide by the rules of the estate when they buy their houses, there are always those who seem to think the rules should only apply to others. These types of conflicts have been raging since the first estates were established, and it seems some people are willing to pay almost any price to avoid being part of a community and abiding by the rules.

To find out what the rights and responsibilities of the Homeowners Association (HOA) is, Hi-Tech Security Solutions spoke to AJ van Rensburg, an attorney and director of AJ Van Rensburg Inc.

According to Van Rensburg, the basic fact is that when an individual buys into an estate, they are buying into a community and are contractually bound by the rules of the community once they sign the transfer papers.

Of course, this means the community must have a set of rules and regulations in place, the HOA cannot simply make up the rules as they go. More importantly, these rules must be presented to the residents at an AGM or similar meeting and the majority must vote in favour. These are then enforced as per the requirements of the estate’s Memorandum of Incorporation (MOI). In times of disagreement, the MOI is critical to resolving differences. When it comes to security in particular, the same applies and all security processes must be documented correctly and clearly in order to stand up in a court of law, if so required.

The HOA’s role in securing the estate is to promote the safety and security of the residents (or members). In doing so, it often contracts out to external service providers to fulfil tasks such as guarding and the maintenance of electronic security products.

The HOA needs to ensure that the contracts with the security company support its overall responsibilities and ensure efficient oversight of the service provider via an appointed representative and/or regular reports. The security work may be outsourced to a third party, but the HOA is still responsible for making sure it delivers the goods.

It’s also worth noting that the security company is hired with specific tasks to perform, such as managing access control at the gate or patrolling the perimeter etc. No matter how important a resident is, they have no right to demand any services beyond that which the company is contracted for. It’s not the guard’s job to stop the neighbour’s dog from barking or to wash your car.

Protocols of operation

Getting down to specifics, the HOA must ensure that all the processes and procedures the service provider is expected to fulfil are documented. This would, for example, include the process of granting access to a member and an alternate process if the first is not possible (such as a member losing his access card). Visitors to the estate, whether there for personal visits or contractors retained for a specific job also need a process by which they are allowed access and by which they are denied access.

The guards at the gate need to follow these procedures at all times, no matter who arrives at the gate. Van Rensburg notes that this applies to everyone. If the police arrive at the gate and want access without an invitation from a resident or a court order (a search warrant, for example), they should not be able to gain access since it is private property. In the case of the police, the HOA can decide on a security protocol, with the approval of the members, to allow them access.

It’s also worth noting that the guards and the HOA do not take over the job of the police. They, according to protocol, have the right to deny access to someone who has an unlicensed car, for example – if that is part of the estates protocol – but they can’t impound a vehicle or arrest the driver. When it comes to detaining a trespasser, the security company can hold the suspects until the police arrive, as long as the detention process is in their operational profile.

The processes employed by the security service provider, whether at the perimeter, at the gate or anywhere else, all depend on the contractual agreement between the HOA and the company. So it’s no use abusing the guards at the gate because they won’t let you in, they have to do their jobs as defined in the agreement, without giving special attention to anyone.

PoPI and your rights

With the Protection of Personal Information Act (PoPI) waiting to be enforced (see the article in this issue), some question the right of estates to hold the personal information of residents and visitors. The reality is that estates have to keep certain information of its members by law and PoPI won’t change this. It may however, force estates to rethink the manner in which they store the information and whether they make it available to third parties – which they should not unless they have consent from the individual.

As far as visitors are concerned, they do not have to provide any personal information at the gate, but then they won’t gain access. Once again, it is acceptable for estates to collect the information, as long as it’s relevant, but they must ensure it is securely stored and securely deleted after a set time.

A final note for those looking to purchase a property in an estate and rent it out. Even if the estate doesn’t screen your proposed tenants, it may be in your best interests to do so. Van Rensburg points out that while the tenants are subject to the same rules as owners, the ultimate responsibility for breaches and problems lies with the member who owns the property. Renting to unruly tenants may end up causing more problems and headaches than it’s worth.

In conclusion, the legal obligations of the HOA, its individual members and visitors to an estate are clear. The problem lies in ensuring the rules and regulations are well defined and documented in such a way as to avoid any potential conflict. If a case goes to court, the judge will rely on the MOI as well as all correspondence between the parties, which puts the onus on the HOA to also ensure clear and concise communications with members at all times. In support of this, Van Rensburg points to recent judgements where a judge has found in favour of the HOA and not individuals who didn’t feel obliged to follow the rules – even when claiming ignorance of the rules. One such finding can be found at http://www.saflii.org.za/za/cases/ZAKZDHC/2014/36.html

For more information contact AJ van Rensburg, VRB Attorneys, +27 (0)11 447 3034.




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