“I live in a gated estate which is run as a Home Owners’ Association. The association has recently put up 40 km/h speed warnings and has informed the homeowners that speeding fines will be imposed for transgressions of the speed limit. I find this quite ridiculous particularly as the general speed limit is 60 km/h. Can they do this?”
Home Owners’ Associations (HOAs) are generally quite similar to sectional title schemes, with residents in a community often joining together to help maintain infrastructure and the safety and security of those living within the community.
HOAs also formulate their own rules and regulations which apply to the homeowners living in the HOA. When living in an HOA the rules and regulations apply to homeowners and can include aspects such as speed restrictions and penalties which may be more restrictive than that of a normal public road.
In a Supreme Court of Appeal case of Mount Edgecombe Country Club Estate Management Association II (RF) NPC v Singh & others, the court had to consider whether roads within a private housing estate were ‘public roads’ as defined in the National Road Traffic Act 93 of 1996 and whether conduct rules ordaining a speed limit of 40 km/h within the estate, were unlawful. The KwaZulu-Natal High Court (Pietermaritzburg) held that the roads in this particular HOA estate were ‘public roads’ and were subject to the National Road Traffic Act and that the HOA was usurping the role of the Transport MEC and local municipality by drawing up their own rules and imposing fines for contravening them.
On appeal, however, the Supreme Court of Appeal, after considering the definition of ‘public road’ and applying it to the present case, stated that an estate is essentially a private township. In terms of the township approval, the owner had to construct all the roads in the township to the satisfaction of the local authority. At the inception of the estate, the roads within the estate were private roads. That never changed and the roads did not thereafter acquire the character of public roads.
The court continued that when the respondents chose to purchase property within the estate and become members of the HOA, they agreed to be bound by its rules. The relationship between the HOA and the respondents is thus contractual in nature. The conduct rules, and the restrictions imposed by them, are private ones, entered into voluntarily when an owner elects to buy property within the estate. By agreement, the owners of property within the estate acknowledge that they and their invitees are only entitled to use the roads laid out within the estate subject to the conduct rules.
Fines could therefore be imposed on those who fail to adhere to the rules of these private roads in the HOA, thereby confirming that private gated estates are entitled to draw up their own rules, including setting speed limits on internal roads and imposing ‘fines’ for exceeding them.
Of course, an HOA can’t just do what they want and have to follow the correct procedures for establishing rules and regulations. But if correctly done, they can adopt rules which impose speed restrictions and penalties on homeowners for transgressions.
This article first appeared on Phatshoane Henney
