{"id":912,"date":"2020-11-07T11:59:12","date_gmt":"2020-11-07T09:59:12","guid":{"rendered":"https:\/\/www.matthewsenslin.com\/?p=912"},"modified":"2021-07-28T13:15:32","modified_gmt":"2021-07-28T11:15:32","slug":"parking-bay-disputes-enforcing-complex-rules","status":"publish","type":"post","link":"https:\/\/www.matthewsenslin.com\/parking-bay-disputes-enforcing-complex-rules\/","title":{"rendered":"Parking Bay Disputes \u2013 Enforcing Complex Rules"},"content":{"rendered":"<blockquote><p><em>\u201cBy subscribing to the constitution, each member accepts the benefits stipulated in his or her favour by the other subscribing members. One of those benefits is that there shall be rules of conduct to give substance to the objectives and rights promised and conferred by the constitution \u2026 and that the other members will be required to comply with them \u2026 and that any breaches thereof will be called to account&#8221; (Extract from judgement below)<\/em><\/p><\/blockquote>\n<p>There are many advantages to living in residential estates and sectional title developments, but there are also rules and responsibilities.<\/p>\n<p>A common source of friction in complexes is parking, leading to complaints such as \u201cthere\u2019s never any parking for my visitors because owners hog the visitor bays for their own cars\u201d and \u201cour complex roads are a nightmare of parked cars jutting out of driveways\u201d.<\/p>\n<p>In yet another reminder to community scheme buyers and owners to fully understand and comply with all the rules and regulations you are agreeing to, the High Court recently barred a homeowner from parking his vehicles anywhere except in his own garage and driveway.<\/p>\n<ul>\n<li>The owner in question lives in a residential estate governed by a Homeowners Association (HOA), one of whose rules forbids the parking of owners\u2019 vehicles either in visitors\u2019 bays or in the street.<\/li>\n<li>Able to park only one of his vehicles in his own double garage (because of household equipment stored there) an owner persistently parked his second vehicle outside his garage (its size meant that it jutted into the street), and his third vehicle in a visitor\u2019s bay.<\/li>\n<li>Other owners complained and the HOA asked the High Court for an interdict against the owner in question.<\/li>\n<\/ul>\n<p>Two of the owner\u2019s contentions in fighting the application are no doubt commonly raised by rule-breakers generally \u2013<\/p>\n<ol>\n<li><strong>\u201cThe HOA has waived compliance with its rules by not enforcing them\u201d<\/strong>The owner claimed that failures to strictly enforce the rules against other offenders amounted to the HOA waiving compliance with them. Not so, held the Court, the HOA\u2019s duty was to enforce the rules for everyone\u2019s benefit, plus it had no power to waive compliance. HOAs must however both check the exact wording of their constitutions and recognise the need to conscientiously enforce compliance with rules \u2013 both factors mentioned by the Court in reaching its decision.<\/li>\n<li style=\"margin-top: 20px;\"><strong>\u201cThe HOA is applying the rules in a discriminatory manner and shouldn\u2019t be allowed to\u201d<\/strong>The owner&#8217;s argument here was that the HOA was discriminating against him and could not be permitted to do so. This being a contractual right, held the Court, any failure to enforce it against other owners would have no legal bearing on its rights to enforce it against the owner. The Court did, however, warn that &#8220;an irrationally discriminating system of enforcement might well in a given case justify a decision by the court in a matter like this to refuse to grant the interdictory relief in the exercise of its equitable discretion.\u201d In other words, HOAs should be careful to avoid any form of \u201cirrational\u201d discrimination in enforcing rules.<\/li>\n<\/ol>\n<p>The result \u2013 the owner is &#8220;prohibited from parking his vehicles, motorbikes, caravans, boats or trailers anywhere \u2026 other than in his garages or outside his house wholly within the boundary of his property.&#8221; He must also pay the HOA&#8217;s legal costs.<\/p>\n<p><strong><em>An endnote on the CSOS dispute resolution service<\/em><\/strong><\/p>\n<p>The CSOS (Community Schemes Ombud Service) provides a dispute resolution service and can adjudicate a wide range of disputes in community schemes. In this particular case, it has no jurisdiction to grant an order against the owner, but it should always be your first port of call if possible \u2013 take specific advice.<\/p>\n<p>[This article was originally published in the LawDotNews November 2020 newsletter. To view the full November 2020 newsletter please go to this <a href=\"https:\/\/www.dotnews.co.za\/Code\/online.aspx?qry=qXCwdGYpFFjQWRPXGGRft8mueX03du3MFV7-stJCkdm-qb_hRrSJveBnJE4Cl4CoC16nZxqR3-RDf-NJgijr1Sr3B0efcdNzE_VFZpDdZO4f8VAhnnPkyYnlY3t9Qlsk\" target=\"_blank\" rel=\"noopener\">link<\/a>.]<\/p>\n","protected":false},"excerpt":{"rendered":"<p>\u201cBy subscribing to the constitution, each member accepts the benefits stipulated in his or her favour by the other subscribing members. One of those benefits is that there shall be rules of conduct to give substance to the objectives and rights promised and conferred by the constitution \u2026 and that the other members will be &hellip;<\/p>\n<p class=\"read-more\"> <a class=\"\" href=\"https:\/\/www.matthewsenslin.com\/parking-bay-disputes-enforcing-complex-rules\/\"> <span class=\"screen-reader-text\">Parking Bay Disputes \u2013 Enforcing Complex Rules<\/span> Read More<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-gradient":""}},"footnotes":""},"categories":[6],"tags":[134,132,131,133],"_links":{"self":[{"href":"https:\/\/www.matthewsenslin.com\/wp-json\/wp\/v2\/posts\/912"}],"collection":[{"href":"https:\/\/www.matthewsenslin.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.matthewsenslin.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.matthewsenslin.com\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.matthewsenslin.com\/wp-json\/wp\/v2\/comments?post=912"}],"version-history":[{"count":0,"href":"https:\/\/www.matthewsenslin.com\/wp-json\/wp\/v2\/posts\/912\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.matthewsenslin.com\/wp-json\/wp\/v2\/media?parent=912"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.matthewsenslin.com\/wp-json\/wp\/v2\/categories?post=912"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.matthewsenslin.com\/wp-json\/wp\/v2\/tags?post=912"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}