What happens when a scheme regards an owner’s alteration as aesthetically undesirable and seeks an order compelling its removal?
More importantly, can a scheme obtain such drastic relief if its governing documents did not clearly prohibit the alteration when it occurred?
In the recent judgment of Gateside Manor Homeowners Association v Hamisi and Others, the Gauteng Division of the High Court considered whether a homeowners’ association could compel an owner to remove synthetic grass installed outside his residence.
The CSOS adjudicator refused to order its removal, and the association appealed to the High Court.
Drastic Remedies Require Clear Authority
The Court confirmed that a scheme’s authority is derived from its governing documents. Although schemes may enforce rules intended to preserve the appearance and character of an estate, a broad objective of aesthetic harmony cannot replace a sufficiently clear rule.
The more intrusive the remedy sought, particularly where an owner must remove completed work at personal cost, the greater the need for a clear rule-based foundation.
In this matter, the rules did not clearly prohibit synthetic grass. The Court found that installing it did not constitute “building work” merely because natural grass had been removed and the ground prepared. Nor was synthetic grass a permanent or temporary structure requiring approval. The Court considered such alterations as being landscaping and a choice of ground cover.
A scheme cannot, therefore, rely solely on an undefined aesthetic preference or a communication that something is “not allowed”. Before seeking removal, demolition or other coercive relief, it must identify the precise provision authorising that remedy.
Decisions Do Not Operate Retrospectively
After the synthetic grass had been installed, the members adopted a resolution opposing artificial lawn in areas visible from common property.
The Court accepted that such a resolution could regulate future conduct. It could not, however, retrospectively create a contractual prohibition that had not existed when the installation occurred. In fact, the need for a specific resolution suggested that the earlier governing documents did not clearly regulate synthetic grass.
The lesson is simple. Schemes may respond to new materials and aesthetic trends by properly amending their governing documents, but a decision taken today cannot ordinarily turn yesterday’s conduct into a breach.
The Grass Is Finally Greener in Law
On a much lighter note, the judgment also resolved an unexpectedly difficult botanical question.
The CSOS adjudicator had found that grass could not be regarded as flora. The Court corrected this and confirmed that grass is, in fact, flora because it is living plant material.
So, after a lengthy journey through the legal garden, we finally have certainty: grass is flora.
The broader message is clear. A legitimate governance concern does not automatically produce a legally competent remedy. Drastic enforcement action must be rooted in a clear and pre-existing rule that supports the specific relief sought.
At HP Inc., we do not advise in the abstract or pursue remedies merely because they appear forceful. We determine whether the governing documents support enforcement, whether the proposed remedy is legally competent and whether pursuing it is strategically in the scheme’s best interests.
Before demanding that an owner remove, demolish or restore, make sure the governing documents have planted the necessary seeds.
Should you require any further assistance, do not hesitate to contact us.
Yours Faithfully,
