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CPA-consumer protection act

By Annie Graeme on Mon, 05 Mar 2012 at 12:43

Home owners association
HOA and CPA (Consumer Protection Act)
How does homeowners of a HOA benefit from the CPA?
'juristic person' includes-
(a) a body corporate;
(b) a partnership or association; or
(c) a trust as defined in the Trust Property [Control] Act, 1988 (Act 57 of 1988); [note this provision]
'transaction' means-
(a) in respect of a person acting in the ordinary course of business-
(i) an agreement between or among that person and one or more other persons for the supply [in other words "sell, rent, exchange or hire in the ordinary course of business of the other person(s) for consideration"] or potential supply of any goods or services in exchange for consideration; or
(ii) the supply [in other words "sell, rent, exchange and hire in the ordinary course of business for consideration"] by that person of any goods to or at the direction of a consumer for consideration [note that a sale of immovable property is only a 'transaction' as defined if it is between a seller acting in the ordinary course of business]

Section 5 Application of Act
(1) This Act applies to-
(a) every transaction
(b) the promotion of any goods or services, or of the supplier (sic) [I suppose the word 'supplier' should have read 'supply']of any goods or services, within the Republic, unless-
(i) those goods or services could not reasonably be the subject of atransaction to which this Act applies in terms of paragraph (a); or
(ii) the promotion of those goods or services has been exempted in terms of subsections (3) and (4);
(c) goods or services that are supplied or performed in terms of a transaction to which this Act applies, irrespective of whether any of those goods or services are offered or supplied in conjunction with any other goods or services, or separate from any other goods or services; and
(d) goods that are supplied in terms of a transaction that is exempt from the application of this Act, but only to the extent provided for in subsection (5).

Section 22 Right to information in plain and understandable language
(1) The producer of a notice, document or visual representation that is required, in terms of this Act or any other law, to be produced, provided or displayed to a consumer must produce, provide or display that notice, document or visual representation-
(a) in the form prescribed in terms of this Act or any other legislation, if any, for that notice, document or visual representation; or
(b) in plain language, if no form has been prescribed for that notice, document or visual representation.
(2) For the purposes of this Act, a notice, document or visual representation is in plain language if it is reasonable to conclude that an ordinary consumer of the class of persons for whom the notice, document or visual representation is intended, with average literacy skills and minimal experience as a consumer of the relevant goods or services, could be expected to understand the content, significance and import of the notice, document or visual representation without undue effort, having regard to-
(a) the context, comprehensiveness and consistency of the notice, document or visual representation;
(b) the organisation, form and style of the notice, document or visual representation;
(c) the vocabulary, usage and sentence structure of the notice, document or visual representation; and
(d) the use of any illustrations, examples, headings or other aids to reading and understanding.

Section 41 False, misleading or deceptive representations
(1) In relation to the marketing of any goods or services, the supplier must not, by words or conduct-
(a) directly or indirectly express or imply a false, misleading or deceptive representation concerning a material fact to a consumer;
(b) use exaggeration, innuendo or ambiguity as to a material fact, or fail to disclose a material fact if that failure amounts to a deception; or
(c) fail to correct an apparent misapprehension on the part of a consumer, amounting to a false, misleading or deceptive representation,
or permit or require any other person to do so on behalf of the supplier.
(3) Without limiting the generality of subsections (1) and (2), it is a false, misleading or deceptive representation to falsely state or imply, or fail to correct an apparent misapprehension on the part of a consumer to the effect, that-
(c) any land or other immovable property-
(i) has characteristics that it does not have;
(ii) may lawfully be used, or is capable of being used, for a purpose that is in fact unlawful or impracticable; or
(iii) has or is proximate to any facilities, amenities or natural features that it does not have, or that are not available or proximate to it;
(f) a specific price advantage exists;
Yes all this is in the act, but how do we as homowners in a nonprofit HOA Pty Ltd use them?

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RE: CPA-consumer protection act

Mike Power replied on Mon, 05 Mar 2012 at 14:18

Hi Neil, In my opinion the relationship between the HOA and the owners does not fall under the CPA. The HOA does not supply goods or services to its members, nor does it receive any consideration. The same applies to S/T and its owners.

The CPA may apply however to transactions between the HOA and any supplier. For example, plumbers, painters etc who supply goods or services to the HOA.

RE: CPA-consumer protection act

Anne Granada replied on Mon, 05 Mar 2012 at 18:44

I would also like a legal opinion about the CPA and home owners associations (which provide a service), or is it between the managing agent (who provides a service) and the homeowners.
Could Prof Paddock or some other knowledgable person,
possibly compile a small 20-30 page booklet on non-profit - Home Owners Associaitons PTY Ltd, which one could order over the internet? relevant court judgements, relevant articles from other sources ( plus your input) would be welcome.
Or make it an App and we can download it (one copy only) on our iPads.
I honestly believe this will be a best seller.
Many home owners are floundering and are being brutalized and intimidated by the directors of HOA.
We need specific advice on how to get information out of managing agents who believe that they are all powerful and are being paid exorbitant salaries by the directors to milk the homeowners so that the directs can enrich themselves at our expense. the directors in our complex are quite blatant about us having to subidize them.

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