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Trust Me, I’m A Home Builder

Wednesday, 02 May 2018   (0 Comments)
Posted by: Ernest Roper
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INTRODUCTION

Does a trust have to comply with the Housing Consumer Protection Measures Act, 95 of 1998 (“the Act”)?

More particularly, does a trust that is engaged in building a house or residential accommodation have to register with the National Home Builders Registration Council (“NHBRC”) as a home builder and
enrol the home before commencing construction? This is the normal obligation of a home builder under the Act.

The answer to this question hinges on the meaning of “person” in the Act and has recently been clarified by the Limpopo High Court in Polokwane.

BACKGROUND

Mike’s Trust (“the Trust”) is the owner of property in Devenish Street, Polokwane. The trustees decided to construct sectional title housing units on the Trust’s property.

The trustees initially registered the Trust as a home builder with the NHBRC for the purpose of their project. However, they subsequently allowed the Trust’s registration to lapse and decided not to renew it.

(National Home Builders Registration Council v MW Andendorf and Others, Case No 1640/2015, judgment date 14 February 2018.)

This prompted the NHBRC to apply to the High Court to interdict the construction process and
declare the conduct of the trustees unlawful and in contravention of the Act.

By the time that the matter came before the Court, the building works had been completed and the
housing units had been rented out to tenants. As such, the relief sought in the form of the interdict
became academic. However, the Court was still required to rule on the alleged illegality of the Trust’s conduct.

The Act requires home builders to register as home builders and to enrol houses with the NHBRC
before commencement of construction.

The Act applies to any home builder which it defines as: 

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Alastair Hay
Cox | Yeats


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