My Reply to the HOA

The New Communal Jetty Berth Agreement - My Reply to the HOA

28 May 2026 

Subject: Jetty Berth Agreement — Existing Agreement Remains in Force

Dear Boet,

The HOA response to my email, while lengthy, does not address the only two points I raised.  (HOA email was on received on 22 May. Bold added here for readability)

Point 1: The existing Jetty Berth Agreement, concluded between myself and the HOA on 14 February 2004, is a binding contract.

Point 2: The new agreement was presented to members without notice, explanation, or any account of the changes. The existing agreement was not acknowledged. Members were not placed in a position to give informed consent.

Your letter sets out the HOA's reasons for the updated agreement. I do not accept those reasons but see no merit in addressing them here. The existing agreement has served both the HOA and members well for over 20 years.

Point 1 in detail: 

The existing agreement contains an express provision that no variation shall be of any force or effect unless reduced to writing and signed by both parties. The HOA has not sought my written consent to any variation. The existing agreement therefore remains in full force and continues to regulate the relationship between us. I have obtained formal legal opinion confirming that it is valid and enforceable until 31 December 2101, and that the HOA has no right to unilaterally impose new terms — including ongoing monthly levies, reserve fund contributions, additional administrative costs, or more onerous transfer provisions. These materially erode my existing rights.

Point 2 in detail: 

The HOA reply is classic straw man: the actual issue raised has not been addressed. Instead it was reframed into a broader defence of the HOA's conduct, and that substituted argument was answered. A response to an argument I did not make does not answer the argument I did make.

The new agreement was presented as an 'update' with no acknowledgement of existing binding agreements, no explanation of the material changes, and no account of how those changes would affect existing rights. This falls short of the HOA's constitutional obligation to act in the interests of its members, and raises concerns beyond simple contract law — including potential misrepresentation under both common law and the Consumer Protection Act, absence of informed consent, and breach of fiduciary obligations. I reserve all rights and remedies available to me, including referral to the Community Schemes Ombud Service.

The HOA has ignored my request that the new agreement be withdrawn. While this does not affect my personal position — I will not be signing it and my existing agreement stands — withdrawal is a wider issue affecting all berth holders. Those who have not yet signed retain rights they may not be aware of. Those who have already signed may have done so without informed consent and I request that they be given the opportunity to withdraw. If consent was not informed, those agreements would not be enforceable in any event.

I note the HOA's reservation of rights regarding the management and use of communal jetty infrastructure. Your response does not engage with the variation clause or explain on what legal basis new obligations could be imposed without my consent. I would be grateful if you could clarify what that reservation means in practice, and whether the HOA intends to impose obligations on me beyond those in my existing agreement. A general reservation of rights is not an answer to a specific contractual point.

My position is clear:

1. I do not consent to the proposed variation.

2. The existing agreement of 14 February 2004 continues to regulate the relationship between the parties.

3. My request that the HOA withdraw the updated agreement stands.

Sincerely, Ken Rutherford