Short-term rentals in residential complexes where owners let out their apartments to weekend or holiday guests – so-called Airbnb rentals – have sparked much controversy, but a recent court order affirmed the rights of homeowners’ associations and body corporates to regulate these rentals.

The Gauteng High Court, Johannesburg, was faced with an application by the Blyde Riverwalk Home-Owners Association (HOA) against about 80 home owners who used their units for short-term holiday accommodation.

This prompted complaints from permanent residents about noise, overcrowding, and security risks. In 2020, the estate’s HOA and developer tightened its conduct rules to restrict short-term letting (STL).

While the Community Schemes Ombud Services (CSOS) initially approved the new rules, an adjudicator later set them aside and reinstated the more lenient 2018 rules. The HOA subsequently appealed these rules to the high court.

The Blyde Riverwalk Estate is situated in the Pretoria East area, popular due to its picturesque setting, which includes a lagoon.  

The HOA and STL owners have been at loggerheads for a number of years. At the inception of the Blyde Scheme, the vision of the developer was for it to be a family-oriented lifestyle estate where families enjoy the various amenities, which include the outdoors, beach, and water activities in a safe and secure environment.

The applicants contend that the Blyde Scheme has a 24/7 state-of-the-art security system with biometric access, ensuring the safety and security of all its residents. Currently, phases one to 14 of the Blyde Scheme have been completed, consisting of 1,157 units. It is envisaged that on completion of the Blyde Scheme, there will be 3,281 units.

The Blyde Scheme would be developed in approximately 49 phases with a crystal-clear lagoon totalling the size of two rugby fields. This all with a view to “bring the beach to Pretoria” for clients and families of Balwin, who love water sports.

The applicants contend that the letting out of units to holiday makers renting these units (usually for a period of one to three days) does not adhere to the rules and family ethos that was envisaged and which the HOA seeks to maintain and preserve.

The HOA has had to deal with endless complaints from residents in regard to the disruption caused by those holiday makers who often “party” and “have a good time”. 

The court, meanwhile, allowed the stricter 2020 rules to remain in force for now, pending the appeal on the broader facts of the dispute, which will be decided at a later stage.

Unpacking the ruling, Johlene Wasserman, director of Community Schemes and Compliance at Sandton-based law firm VDM Incorporate, said it affirms the right of HOAs to regulate disruptive holiday rentals while the broader dispute continues. 

“The court has delivered a clear message that STLs are a commercial activity and that HOA and corporate bodies have the power to regulate them – provided the rules are properly adopted and approved. 

“In practical terms, this means that short-term letting is still permitted at the Blyde Estate, but only under the more restrictive 2020 rules – at least until the appeal is concluded,” Wasserman explained.

According to her, the implications for community schemes in general are that short-term letting is not an unregulated right and may be limited through properly adopted and CSOS-approved rules.

While the legal process continues, the court recognises the rights of permanent residents to quiet enjoyment that’s not overshadowed by disruptive holiday rentals.

For HOAs and community schemes across South Africa, the judgment strengthens the principle that schemes are legally entitled to regulate disruptive commercial activity and preserve the residential character of their developments, Wasserman said.

zelda.venter@inl.co.za

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