Protecting your sectional title scheme: Insights from recent court cases

“See no evil, hear no evil, speak no evil” – this is what comes to mind when there are things wrong around common property, and nobody speaks up.

In the sectional title property environment, the responsibilities of bodies corporate, and thus trustees, go beyond routine management tasks. A recent court case, Eze v Adderley Body Corporate and Another, trustees and managing agents to a certain degree, are reminded of their duty to maintain and safeguard common property within sectional title schemes.

We say reminder, as it was just over ten years ago when we were also reminded after what we refer to as The Cascades case, Du Plooy v Cascades body corporate and another. There have been various cases over the years, involving swimming pools, balustrades, handrails, and so on.

In this matter, the case centred around Stephen Eze, a pedestrian injured by a falling wooden ceiling structure on Adderley Street in Cape Town. The Western Cape High Court emphasised the “duty of care” held by the Adderley Body Corporate to maintain a clean and safe building. Regular inspections, timely maintenance, and repairs to defects were deemed crucial. The judgment underscored the importance of alerting the public to safety risks and preventing access to hazardous areas.

For owners of sectional title properties, this case underscores shared responsibility. As a default member of the body corporate, property owners must actively participate in ensuring the scheme’s overall maintenance and, importantly, confirm the presence of liability insurance.

While property management functions are often outsourced to agents, the ultimate responsibility for maintenance lies with the body corporate and its board of trustees.

Nonetheless, as the outcome of this case has once again shown, the managing agent is more often than not, dragged in as co-defendant and thus, also requires sufficient liability cover, even if only to defend oneself. 

All owners in the scheme collectively own the common property. These are all the areas outside the sections and are areas which fall under the responsibility of the body corporate. These areas are often high-risk areas in terms of liability and safety such as corridors, lifts, children’s play areas, stairways and so on.

The court’s ruling in Eze v Adderley Body Corporate underscores the potential consequences of negligence in maintaining common property. The judgment makes it clear that unforeseen incidents resulting from neglected upkeep can lead to legal repercussions and unexpected expenses for both the managing agent and the body corporate.

Conclusion

This case serves as a gentle reminder for trustees and managing agents. Neglecting maintenance responsibilities can have serious implications, both in terms of personal safety and financial repercussions. Trustees are encouraged to proactively address their duty to keep buildings in good repair, fostering a safe and secure environment for all residents. Owners should take a more proactive approach and speak up when noticeable neglect is present.

It is a collaborative effort which ensures the well-being of residents and safety around the property.