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Tuesday Dec 10, 2013

Property owners clash with estate developers

The tranquil Hawaan Forest Estate in uMhlanga has become a battlefield with the developers of the upmarket 63-hectare housing estate pitted against the homeowners' association in a legal dispute over new sales of plots.

Developers Pat Naicker and Tony O'Neill bought the ecologically sensitive land from the Durban Country Club in 2003 and fought to have it rezoned and to get planning approval for the development of a 'suburb' consisting of 114 sites in the first four completed phases and a further 25 units in phase five, the first sales of which are in the pipeline.

Naicker, in an urgent Durban High Court application yesterday, complained that these sales were now being stymied by the association.

If the situation is not resolved soon, the development company will lose out on about R23 million because of the 'vindictive attitude of a cabal of directors' and apparently the unrelated dispute over converting tar roads to brick paving on the estate.

The association has indicated it will file opposing papers by the end of this week.

But the court will soon go into recess until next month, so it is unlikely to be heard by a judge before then.

In her affidavit, Naicker said that up until 2008, Hawaan Investments Pty Ltd had managed the association with her and O'Neill as its sole directors, but then control had been handed to a board of directors, which included her and O'Neill.

The company recently completed formalities for the sale of the rest in phase five and wanted the association to consent to five sales with a combined value of R23m which were about to be lodged with the deeds office.

She said the transfers could not take place unless the buyers were members of the association, but the association was 'unlawfully' withholding its consent.

In a letter attached to the court papers, the association's attorney said it was obliged only to take over the management of phase five once, 'in its discretion', the minimum standards of infrastructure had been met.

But Naicker said the sale agreements took into account that the responsibility for phase five lay with the development company, with expenses such as electricity, security and general maintenance to be carried by the company, pending the takeover by the association.

She said the infrastructure had only been developed sufficiently for the transfers to be registered and that the phase would be properly developed, with roads and security, only when the bulk of the sites had been sold and developed by buyers, which would take about 18 months.

Naicker said the buyers might cancel their agreements, with dire financial consequences to the company and the entire estate.

She said there had been bad blood between the company and the association since 2008 with financial claims and counter-claims and several matters ending up in court.

The Mercury


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