The applicant, the Directors of Bronberg Retirement Village Home Owners Association, brought a dispute-resolution application under section 38 of the Community Schemes Ombud Service Act 9 of 2011 against the respondent, Zelda Amelia Lalyett, the registered owner of Unit 157 in the estate. The applicant alleged that the respondent had undertaken unauthorised and unlawful alterations by installing a wooden boundary fence without the necessary permission of the board and in a style differing from the norm within the estate. The applicant said the respondent had been warned but failed to rectify the alteration. The respondent disputed this and stated that, before transfer of the property, she submitted a fencing application on 15 November 2022, that the board approved it, and that she received written approval by email on 1 December 2022. She then appointed a contractor and paid R27 500 for the work. She contended that the fence was necessary for privacy and pet security, that similar or higher fencing existed elsewhere in the estate, and that the later objection arose only after pressure from other owners. The matter proceeded on the papers after conciliation failed and a certificate of non-resolution was issued.
The application was dismissed. The adjudicator ordered that the relief sought by the applicant under section 39(6)(b) be dismissed, found that the respondent had complied with the applicant's Conduct Rules prior to erecting the fence, and made no order as to costs.
Where a homeowner in a community scheme obtains the prior written approval required by the scheme's conduct rules before undertaking an alteration, and then acts in accordance with that approval, the homeowners association is not entitled under section 39(6)(b) of the CSOS Act to compel rectification or removal of the alteration solely on the basis of a later withdrawal of approval. Scheme rules are binding, but compliance with them by obtaining prior written consent defeats a subsequent claim that the alteration was unauthorised.
The adjudicator made broader observations that scheme rules operate as a contractual arrangement between the association and its members and referred to case law stressing judicial reluctance to second-guess aesthetic and governance decisions of trustees or boards in voluntary associations, save on recognised review grounds. The adjudicator also cited authority concerning the need for local authority approval under the National Building Regulations and Building Standards Act 103 of 1977, but this was not the determinative basis for the outcome because the case turned on the prior approval granted under the HOA's own rules.
The decision is significant in South African community schemes jurisprudence because it confirms that while HOA conduct rules governing alterations and aesthetics are binding and enforceable, an owner who has obtained prior written approval in compliance with those rules cannot easily be compelled to undo the work merely because the association later changes its stance. The matter illustrates the importance of procedural fairness, documentary approval, and consistent decision-making by HOA boards in alteration disputes under the CSOS Act.