Guide to Homeowners Associations (HOA) in Zimbabwe

The concept of Homeowners Association (HOA) in Zimbabwe is now firmly entrenched in the country where ownership of a block of flats for instance, vests in a legal persona such as a body corporate or a voluntary association that the grants the rights to individuals to exclusively occupy certain units in the block. see Okeke v M Duro & Company 2006 (1) ZLR 506 (H).

An HOA in Zimbabwe is not specifically regulated by any enactment of law. Currently no legislative enactment has been created to regulate the creation or prescribe rules for performing the functions of maintaining and administering common property and providing services to members by a HOA.

An HOA in Zimbabwe is regarded as a common law universitas. It is a therefore body corporate or voluntary association with capacity to sue and to be sue and is established by virtue of a Constitution generally annexed to a Notarial Deed in terms of section 27 of the Deeds Registries Act [Chapter 20:05].

Every block of flats, apartment in a cluster home development or house in a gated-community in the country is regulated by a HOA Constitution. The High Court in Sibanda & Another v Pentaville Investments (Pvt) Ltd & Others 2003 (1) ZLR 129 (H) held that:

“The concept of cluster homes on a piece of land in urban areas, held under sectional title, is now a part of the property scene in Zimbabwe. The concept is founded on the common law principle of joint ownership, where two or more persons own undivided shares in a piece of land, each share carrying with it an exclusive right to occupy the land.”

An HOA can also be described as a voluntary organisation established under common law or pursuant to a Notarial Deed to govern the management and administration of a shared property. A HOA Constitution is regarded as a contract in Zimbabwe which sets out the rights and obligations of the owners and their invitees pertaining to the common property and the units. see Kangausaru Investments (Pvt) Ltd v Bowl & Others SC 31-26.

Property ownership in an estate in which an HOA has been established automatically conveys a membership interest in the HOA to the owners who are responsible for paying levies to cover the costs of maintaining the common areas and providing necessary services. In general, an HOA Constitution in Zimbabwe will provide for a wide array of issues which include but are not limited to:

1. Definitions & Interpretation
2. Name & Establishment
3. Main Business
4. Main Objects & Powers
5. Legal Status
6. Membership
7. Members Rights & Obligations
8. Restrictions
9. Enforcement of Obligations
10. Termination of Membership
11. Developer
12. Trustees
13. Powers of Trustees
14. Meetings
15. Notices of Meetings
16. Proxies
17. Volting
18. Special Resolution
19. Accounting Records
20. Levies
21. Interest & Costs
22. Fines
23. Estate Rules
24. Transfer Rights
25. Indemnity
26. Dispute Resolution
27. Further Phases
28. Amendments to Constitution

The superior courts in Zimbabwe have to date determined numerous cases involving HOAs which include but are not limited to:

1. Strathaven Owners Association v City of Harare HH 223-02
2. Rosedeane Gardens Owners’ Association v Ndenda HH 29-03
3. Eastview Gardens Residents Association v Zimbabwe Reinsurance Corporation Ltd & Others HH 174-03
4. St Tropez Resident’s Association v The Commissioner of Police & Another SC 59-04
5. Meyrick Park Villas Members’ Association v Mandaza HH 579-15
6. Hewat & Another v Brim Investments (Pvt) Ltd & Others HH 503-16
7. Southlea Park Home Owners Association v Sensene Investments (Pvt) Ltd & Others HH 90-19
8. Chiwara v Borrowdale Brooke Home Owners Association & Another HH 335-19
9. Borrowdale Brooke Estate Home Owners Association v Mhlanga HH 617-20
10. Zimbabwe Court Owners Association v Seyoum & Others HH 110-23
11. Burnock Investments (Pvt) Ltd & Another v Borrowdale Brooke Home Owners Association HH 217-26
12. Mduluza v Arlington Estate Home Owners Association & Others HH 427-26.