Do Homeowner’s Associations have a duty to ensure security?

A strong selling point of any gated community, especially in South Africa, is increased safety and security for its residents. Powerful buzzwords such as ‘strict access control’, ‘24-hour manned guarding’ and ‘electric perimeter fencing’ are often used in developer’s brochures and an estate agent’s marketing materials to describe an idyllic enclave where one – for a price – need not worry about walking one’s dog after dark or allowing your kids to ride their bikes freely, safe in the knowledge that they’d return unharmed once dinner is ready.

It is important to remember, that residential gated communities or estates are almost always run by a Homeowner’s Association (HOA,) to which every homeowner, within the specific estate, automatically becomes a member. The HOA has a separate legal existence from its members and is the owner of the common property of the specific estate. The functions and duties of the HOA would be enshrined in the Memorandum of Incorporation (MOI) or Constitution of the HOA, to which all members are bound.

One would think that an important function of any HOA, if not the most important, is ensuring the safety of its members, surely? An important question to ask thus, is does the relevant HOA actually have a duty of care to ensure your safety at all times?

The Gauteng Local Divison High Court in the case of Featherbrooke Estate Home Owners’ Association (NPC) v Lobertus Jocobus van der Bijl (“the Van der Bijl case”), sought to answer this exact question.

The Van der Bijl’s (the plaintiffs) owned a property in the upmarket Featherbrooke Estate and thus were members of the Featherbrooke Estate Home Owners’ Association. One night, in April 2014, they were attacked by robbers in their Featherbrooke home, who gained access to the estate by digging underneath the electrified perimeter fencing. Mr Van der Bijl was shot in the abdomen and Mrs Van der Bijl was assaulted during the robbery, naturally both parties suffered mental trauma. The Van der Bijl’s sued the HOA and the security company hired by the HOA and on duty that evening, alleging that the HOA and the security company wrongfully, in breach of their duty of care, and with gross negligence, failed to take various measures so as to ensure the safety of the residents of the Estate. The question thus became, did the HOA and the security company have a legal duty to prevent the Van der Bijl’s attack which took place at their house?

The Court took guidance from the Loureiro and Others v iMvula Quality Protection (Pty) Ltd case, as heard in the Constitutional Court. The Constitutional Court held that the security company, having assumed the role to prevent crime for payment, had a duty to prevent harm, which was avoidable. In the Van der Bijl case however, the court was posed with the question as to whether the HOA took on the same duty that the security company had, once it accepted the mandate to provide security to the Estate. Namely, to thwart avoidable harm by preventing crime on the Estate.

The Court held that just because the HOA employed a security company, to provide security for the Estate, did not mean that the HOA owed the same duty to the residents of the Estate, as that assumed by the security company it employed.

The question then became whether the HOA has a duty to protect its members simply because its members bought into an estate which is a ‘secured residential estate’. The court held that the HOA’s duty of care and thus liability, would be purely dependant on the contractual relationship it has with its members and therefore any claim from its members would be based on the breach of that contractual relationship. The contractual relationship between the member and the HOA is governed by the HOA’s governance documentation, namely the constitutional provisions or MOI and the corresponding guidelines and estate rules, if applicable or any written contract the HOA has entered into with its members.

The court further held that as an HOA is comprised of homeowners who are members thereof, the court looked into the duty of care a neighbour has toward another neighbour. Thus, the question was posed, legally, is a neighbour required to come to another neighbour’s rescue in a dangerous situation? Morally maybe, but legally, the court noted that no duty rests on a neighbour to come to another neighbour’s aid. Therefore, as the Van der Bijls neighbours had no duty to protect them and the HOA is comprised of their neighbours (fellow homeowner’s), the HOA had no duty to protect them. The court in the Van der Bijl case therefore held that the HOA did not act wrongfully.

Therefore, in conclusion, unless your HOA, specifically places a duty on itself to protect its members from harm and ensure their security, no legal duty exists. It is therefore prudent to ensure, that before you sign on that dotted line to become the proud owner of a house in a gated estate, that you familiarise yourself with the provisions of the governance documentation, such that you understand the rights you’d have as an owner.

Please contact us should you require any community scheme advice on consulting.pgpms@pamgolding.co.za or 021 426 4440.

This article is published under Pam Golding Property Management Services (Pty) Ltd. and was written by Matthew Davidse.