Gated communities and controlled residential estates have become popular in Kenya in the recent past, leading to a rise in the formation of homeowner’s associations. A homeowners’ association or homeowners’ property management company is a governing body of a residential planned community or common interest development created through incorporation or registration under the relevant laws.
Homeowner associations are usually responsible for managing homes/estates within their geographical mandate; enforcing covenants conditions and restrictions placed on properties; owning and operating of common areas for the benefit of their members; making rules and regulations and enforcing them against their members; collecting membership dues to maintain the common areas and operations of the association.
Given the diversity of residents in gated communities and controlled residential estates, disputes may arise between members of homeowner associations. Homeowners’ associations need to have effective strategies of managing and dealing with neighbourhood disputes.
Common disputes between neighbours include.
- Noise complaints
- Strong or unpleasant odors (burning garden or household waste)
- Rearing of farm animals in controlled estates- chickens, cows etc
- Reckless driving
- Excessive barking from pets
- Unruly behavior from children
- Property maintenance issues(overhanging trees, bushes and rubbish pile-up)
- Illegal activities
Unresolved disputes between neighbours can escalate quickly and affect the entire neighbourhood If not effectively managed.
When and how should a homeowners’ association intervene in a neighbour dispute and what are the limits of intervention?
When to intervene?
Is the dispute a personal matter or does it involve a clear violation of the governing rules and regulations subscribed to by the members? Personal matters may involve personal or business relationships between members and in such instances the homeowner’s association should steer clear unless such disputes threaten to affect the entire community, i.e., where violence or property destruction is threatened.
Where the disputes arising involve clear violation of the community’s governing rules and regulations, the homeowner’s association board may have no choice but to intervene to maintain order for the greater good of the community.
How to intervene?
It is essential that a homeowners’ association have an internal documented process for fair dispute resolution. The homeowners’ association formation or incorporation and governing documents should anticipate disputes and contain fair dispute resolution mechanisms.
A general process may include.
- A complaints mechanism
- Evidence gathering mechanism
- Documented key conditions mandating intervention
- Conduct of meetings or hearing for the warring members
- Enforcement measures against offending members
- External dispute resolution – mediation & arbitration
There may be situations in which a homeowners’ association is unable to effectively deal with a neighbourhood dispute or enforce rules and regulations against an offending member. In this instance, if the member’s behaviour continues to interfere with the enjoyment of other members of their property the offended members may seek legal redress through suing for and claiming on a tort of nuisance.
It is important for homeowners’ associations to have clear, effective, and fair dispute resolution policies to manage member disputes and maintain peace, positive relationships, and order in their respective communities.
Disclaimer- This article is intended as a general comment on legal issues and developments. The material is for informational purposes only and should not be taken as legal advice. Seek specialist advice on specific circumstances.