My client approached his Home Owners Association (HOA) for permission to erect an MTN antenna to boost otherwise poor MTN reception in his complex.
The HOA refused permission, citing, amongst other things, unknown health related issues and the risk that a resident in one of the surrounding units could fall ill due to the possible effects of radiation from the installation. The HOA required an independent technical assessment to be undertaken by appropriate pre-agreed professionals to obtain a ‘clean bill of health’ for the installation.
I asked our consultant, Karen Bleijs – a sectional title expert – for her comment. She suggests that the directors of the HOA are being alarmist and extremely unreasonable.
She added that she had been faced with a situation like this where the members of a sectional title scheme would not permit the installation of a cellphone mast on the top of a building because of the unsubstantiated threat of ‘radiation’.
The problem here is that one is dealing with perceptions rather than facts.
As client is a member of the HOA by virtue of his registered ownership of an erf in the township, he is irrevocably bound by the provisions of the HOA. In Karen’s opinion, client could just install the antenna. In all probability, however, the Directors would obtain a Court order compelling client to have the antenna removed, which would be extremely costly as he would likely be ordered to pay a portion of the HOA’s legal costs.
Preferably, client should ask the Directors to convene a special general meeting of all owners for him to obtain a resolution from owners authorising him to enter into the contract with MTN and install the antenna – a normal resolution is required and therefore only 14 days’ notice of the meeting is needed.
All the reasons for wanting to go ahead with the installation and the reports from MTN and others must be included with the notice of the meeting for unit-owners to make an informed decision. Client must be present to debate the issues.
If the vote is not in his favour client can take the matter to the Community Ombud Service or to Court, to attempt to prove that the HOA has been unreasonable and that he should be permitted to install the antenna.