What is a gated subdivision?

Gated subdivisions are neighbourhoods that have controlled access using one or more gates that residents or visitors must pass through. Some have a guard booth with a security staff to ensure that only residents or guests pass the gate, while others use an automatic gate that residents must open with a keycard or remote control. Gated subdivisions in Jamaica are becoming more popular and are being designed with amenities such as clubhouses, convenience stores, gyms, pools and tennis courts. Subdivisions are also seen as an easier way for middle-income earners to own affordable housing.

When planning such a subdivision, developers usually work with the municipal council in the parish in which the subdivision will be constructed to create the relevant covenants, easements and rules that will govern the community. These rules are generally detailed on each certificate of title and in a document called the homeowner’s agreement (“HOA”).

These types of subdivisions are quite different from strata lots, and as such, proprietors usually object to the rules — particularly because they are not governed by the Registration of (Strata Titles) Act or any other legislation. Instead, subdivisions are governed by members who are elected through voting and member participation and are usually referred to as executive members of the association.

Homeownership in these communities binds owners to the HOA covenants, conditions, restrictions and rules. The associations also have legal powers, such as to place a lien, impose fines or sue a homeowner for not complying with the homeowner’s association rules.

What is a homeowner’s agreement (HOA)?

This agreement is a legal document outlining the rights and responsibilities of the homeowner association, board members and homeowners and detailing covenants, conditions and restrictions. It also specifies the ownership rights of the homeowners versus the association and sometimes indicates the architectural standards for the community. The rules contained in your HOA are binding.

Where can HOA rules be found?

The HOA rules are outlined in the HOA itself, which should be given to a purchaser on signing of the sales agreement, regardless of whether the sale is for a home in a new or existing development. In the case of an existing development, you can request to view the governing documents from the previous owners. These documents will include information about the specific rules, restrictions, fees and other guidelines that apply to development.

Member selection

Members are elected from among the residents and serve to maintain grounds, equipment, insurance, community utilities and the overall finances of the community.

Association fees

Homeowner associations need funds to operate. They gather these funds through fees paid by community members. Fees are calculated according to location, orientation and amenities.

Most HOAs will require all unit owners to pay a monthly maintenance charge and may demand one-time special assessments to cover large community expenses/projects.

Association finances

An HOA may adopt one of several approaches to financial management. These choices mainly affect how it funds unexpected expenses or capital investments, such as replacing a generator in a common area or resurfacing a tennis court.

Reserves

Some associations might keep a large cash reserve to pay for maintenance, repairs or other issues. Others might have lower fees, relying on special assessments to cover unexpected expenses. For example — when a major expense comes up and the HOA’s reserves lack the funds to pay for it, the association may charge each homeowner a special assessment.

Benefits of HOA rules

The primary purpose of having community rules and standards is to protect your investment as a homeowner and provide a common framework for neighbours. At first glance, having rules for a neighbourhood or community may seem restrictive. However, there are many benefits to having a robust set of guidelines, including:

• preserving the aesthetics of an area

• protecting and enhancing home values

• enforcing the community’s covenants, conditions, restrictions and association rules

• maintaining the property of the association and its owners

• ensuring conformity to architectural controls

• noise-compliance policies

• parking rules and guidelines

• pet size and number limits

• short-term rental restrictions

• recycling and trash rules

Can the board change or add rules?

In most cases, your community’s rules will not be set in stone. The board often has the authority to adopt new rules for the community. However, if these rules significantly alter the governing documents, a majority vote by association members is typically required. In general, homeowners have much influence on how their community operates. If you are not happy with a particular rule, use the proper channels to change your HOA rules. Attending your meetings and working with your executives are the best way to monitor the rules in your community.

Recommendations

Do not rely on being alerted to any lingering issues between the association and the current owner of a house that interests you. Failure to ask about issues you might have observed before you buy could result in you inheriting them when you take possession of the property.

If you can, speak to some of the community’s current owners — preferably people who are not on the HOA executive and who have lived in the community for several years.

It is always in your best interest to adhere to the rules and regulations of your community. When neighbours work together to enhance their association, everyone sees the benefits — from increased property values to a greater sense of community, security and belonging.

Venice Williams

Attorney-at-Law

Lewis, Smith, Williams & Company

vwilliams@lswlegal.com