Property Case Law Update - Pets, Hoa Rules And Acquiescence
The keeping of pets is a frequent bone of contention in estates managed by home owners associations (HOAs). So too are complaints by owners regarding non-enforcement of theapplicable rules by managing bodies.
This judgment is a double-edged sword, in finding that an HOA had, by continued acquiescence, waived its right to interdict owners who were not complying with its rule that prohibited the keeping of pets. It demonstrates that those who may have flaunted applicable rules could in certain circumstances get away with it, whilst HOAs must bear the consequences of what they allowed.
The Judgment can be viewed here.
Buffelsdrift Game Reserve Owners Association v Holkom and Others
(58258/2013) [2014] ZAGPPHC 789 (7 July 2014)
FACTS
The Buffelsdrift Game Reserve is a private property development. A home owners association (‘HOA’) was established and all owners in the development were obliged to become members thereof. It was, as is practice, included as a term of the sale agreement of property in the estate.
The constitution of the HOA had a rule that prohibited the keeping of domestic cats and dogs.
A few owners, including one of the trustees of the HOA, did however keep domestic
animals for several years. (The trustee had pets for a period exceeding 8 years at the time if the present application to court.)
A dispute arose at some stage with regards to the contravention of the rule and the HOA approached the court for a final interdict to oblige those owners to permanently remove the pets from their properties. One of the defences raised by the pet owners was that the HOA has waived its rights to enforce its constitution by allowing owners to keep pets for such a long time.
The main question to be determined was whether, taking into account the terms of the sale agreement the owners had entered into and the clauses in the HOA’s constitution, the HOA had waived its right to enforce the relevant prohibition.
HELD:
Final interdict
• For a final interdict to be granted, an applicant must show that he has a clear right, that he will suffer injury or harm if the order is not granted, and that there is no other suitable remedy.
• The court found that the HOA did not furnish proof of these elements because, amongst other things, harm or injury is not constituted merely because there was a breach or infraction of the HOA rules. In addition, the allegation that there was no other remedy appeared false, as proof was furnished to the court that at previous meetings of the trustees and members of the HOA, it was resolved to establish regulations for the keeping of pets.
Waiver
• In our law, the doctrine of acquiescence is competent to halt a claim where its application is necessary to attain just and equitable results. The test for inferred acquiescence is the impression created by a plaintiff or applicant on a defendant or respondent: if some act, conduct or circumstance on the part of the plaintiff or applicant (for example, by the applicant’s delay in taking action) lulls the respondent into a false sense of security, the enforcement of a right may cause inequity.
• The test for waiver was also pronounced upon by the Constitutional Court (Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another) as follows:
“Waiver is first and foremost a matter of intention; the test to determine intention to waive is objective, the alleged intention being judged by its outward manifestations adjudicated from the perspective of the other party, as a reasonable person. Our Courts take cognisance of the fact that persons do not as a rule lightly abandon their rights. Waiver is not presumed; it must be alleged and proved; not only must the acts allegedly constituting the waiver be shown to haveoccurred, but it must also appear clearly and unequivocally from those facts or otherwise that there was an intention to waive.”
• In the present matter, it was shown that the HOA was aware that there were domestic animals on some properties. In respect of at least one owner, it knew this for some 8 years. Despite this knowledge, the letter of demand to the various owners were only sent several years after. There was therefore at least an 8 year period in which the HOA showed no intention to enforce its constitution.
• In such an instance, acquiescence can be a bar to an applicant’s attempt to enforce a right that he had omitted to enforce over a period of time.
In the circumstances, the court held that the HOA by its conduct had waived its right to seek legal recourse to prevent the owners from keeping animals on their properties.
Source: STBB Legal Update Newsletter