This is the effect of a condition to be found in the title deeds of many homes within community housing schemes, even though these are usually “freehold” properties, says Gerhard Kotzé, managing director of the RealNet estate agency group.
And such a condition is binding in law whether the owner was aware of it at the time of purchase or not.
In practical terms, he says, a clause in the title deed saying an owner may not sell or transfer their property without the consent of the HOA means they have to inform the association of plans to sell and obtain permission before they can put their home on the market.
“On the other hand, if he does conclude an agreement of sale with a buyer before obtaining consent, the sale must be clearly understood to be subject to the HOA’s consent. Without this the sale could be void.”
Usually, the HOA’s consent will be quite easy to obtain, provided that the homeowner and would-be seller are not arrears with levy payments. Delays can arise if an HOA withholds consent to “get even” with a seller for past differences.
Or an HOA may not give consent timeously because it is badly organised and slow to deal with administrative matters.
“In addition, an HOA would be well within its rights to refuse an owner permission to sell if it had reason to believe that the proposed buyer would not be able to pay his levies or would be delinquent in doing so.
“This is all the more reason for home sellers in estates and cluster complexes to work with qualified and experienced property professionals who understand the legalities, to ensure that they get all the necessary approvals, and who will only introduce financially capable buyers to their properties,” Kotzé says.