Time and time again readers report instances where essential maintenance is not carried out timeously by trustees of sectional title schemes to the resultant detriment of the members of the scheme.
"My body corporate is refusing to maintain the lift in our building. I am very concerned that someone could be killed if the lift falls down or shoots up if they are not checked as stipulated in the lift maintenance agreement."
For instance, a Property24 reader recently wrote the following:
I find that there are many elderly, unqualified persons without any experience whatsoever acting as trustees of body corporates who have no idea how to manage their portfolios. Furthermore, in my complex, I am noticing with more and more concern how they are neglecting certain areas which could result in the body corporate being sued due to a loss of life or injury.
The block of flats (several stories high ) in question was built about 50 years ago, and the essential lift maintenance and repairs have not been carried out in accordance with regulations as stipulated by the lift supplier in a written service maintenance agreement with the body corporate. I am very concerned that someone could be killed if the lift falls down or shoots up if they are not checked as stipulated in the lift maintenance agreement. The body corporate in question is well aware that this maintenance should have been undertaken some years ago, however, they maintain it would be too expensive to carry out and are neglecting their responsibilities with regard to this vital maintenance. This check was supposed to have been carried out 2 years ago and the lift company has indicated in writing that they will not be held responsible for any repercussions should an accident take place. If someone loses their life because of this lack of maintenance of the lift, the body corporate could be sued by representatives of the person who loses their life.
Finally, I am hearing that the body corporate trustees say they are not carrying out essential repairs and maintenance as they are building up a "kitty" for future expensive maintenance repairs. They also indicated that, as many residents in this complex were pensioners on a fixed income, they would not be putting up the levies in the near future so the economic climate is playing a role in their decisions. Their decisions are untenable and could cause residents and visitors to lose their lives.
Can you please advise?
Phil Calothi, owner and Managing Director of a Managing Agency in the Western Cape, Land and Sea Development Services (Pty) Ltd responds:
Generally speaking, Trustees have little experience in the management of sectional title schemes and homeowners associations and are not au fait with their responsibilities notwithstanding the fact that they may have a professional qualification or that they may be directors of companies. They can make the dangerous error of not taking the trouble to understand what their responsibilities are and, as a result, prejudice the integrity and value of the properties of their members which they are required to protect.
The trustees of sectional title schemes and homeowners associations are responsible for the correct management of those entities and, for the above reasons, they should rely on their managing agent to guide them in the correct implementation of their responsibilities and decision-making.
One of their responsibilities is to budget properly for essential maintenance expenditure to ensure that situations like lift and security system failures are dealt with timeously and, preferably, to ensure that preventative maintenance procedures are put in place to minimise such occurrences e.g. by paying a lift service company a retainer to carry out prescribed inspections and services to lifts to keep them in good working order.
It is inexcusable and worthy of sanction for a board of trustees to neglect this responsibility due to inadequate funds being available because they have not raised sufficient levies from the members of the body corporate. Furthermore, in instances of unexpected major expenses, they are empowered to obtain additional funds to cover the costs by raising a once-off special levy against the members of the body corporate.
Marlon Shevelew, specialist rental/eviction/sectional title attorney and general litigation attorney at Cape-based legal firm Marlon Shevelew and Associates advises:
Trustees who do not take heed of their responsibilities should be alive to their potential personal liability arising from legal proceedings which might be taken against the body corporate or homeowners association they manage. They should ensure they protect themselves against that risk by employing a competent managing agent who guides them in the principles of proper corporate governance of the private estates and apartment complexes they serve.
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