“The body corporate is in virtually the same position as a landlord, hotel owner or shopkeeper, who by virtue of his or her control over property, has a legal duty to take reasonable steps in respect of maintenance and supervision to ensure that the property is in a safe condition with reference to the type of person who may normally and reasonable make use of it.” – Extract from a judgement delivered in a recent case
Where does this leave the trustee?
The trustees are in a fiduciary relationship with the body corporate and the Sectional Titles Act expands on this relationship of being entrusted with this duty of care. Prescribed rules are more specific to some of these powers, functions and duties. To answer the question more directly and in layman’s terms: The trustees must make sure that that the common areas are clean, well-maintained and safe because if somebody slips, falls or injures themselves as a result of the trustees failing in their duty of care, the trustees could very easily find themselves defending the body corporate in court.
Where does this leave the Managing Agent / Portfolio Manager?
The short answer: In the same boat. Why is this when the body corporate and the trustees are ultimately responsible? Yes, it may be that the court would not find the managing agent responsible but they may certainly find themselves in the same courtroom as the trustees. It should be remembered that sectional title legislation provides for the managing agent’s appointment. The trustees are empowered to appoint such an agent in connection with the control, management and administration of the common property. In the above-mentioned case, the managing agent found themselves in court but the judge ended up complimenting the managing agent for their competence. The managing agent was able to show that they were contracted in an administrative role only, and they presented very thorough records and minutes for points of reference.
There is a lot to be said about this duty of care, who is responsible and which tasks are delegated. There are various insurance products available to cover trustees and managing agents against liability claims. There are some huge differences and gaps in certain policies, and most especially in the wording of liability and definitions which can have a devastating impact at claim stage. It is therefore very important to engage the services of an insurance advisor who is familiar with sectional title legislation, as well as the gaps in cover and exclusions in policies offered by certain sectional title underwriters.
CLICK HERE for ‘Cascades’ judgement
CLICK HERE for ‘Lack of Handrail’ judgement
Author : Mike Addison
Contact Addsure – The Leaders in Sectional Title Insurance – for fit and proper advice from advisors who understand sectional title. Contact us in Johannesburg on (011) 704-3858; in Durban on (031) 459-1795 and in Cape Town on (021) 551-5069