This week the Property Poser panel deals with a sticky situation relating to the trustees’ responsibilities when it comes to repairs and maintenance in a sectional title complex.
In this instance, the driveways of the complex had to be resurfaced with tar and a special levy was raised to cover the cost. The reader reports that the first section was very poorly done and it was not long before the tar started lifting and sticking to car tyres.
In the end, only a small number of the driveways were completely retarred, with the rest of the surfaces simply being patched, leaving unsightly areas of tar.
Despite complaints from the residents, the trustees have not held the contractor accountable for his poor workmanship.
He has already been paid in full and the reader would like to know what recourse residents have against the trustees for being remiss in their duty to ensure that the work was done properly.
The trustees are in a fiduciary relationship to the body corporate, says Brian Kinnear, principal of Fresh Lifestyle Properties in East London.
“This implies that every trustee must act honestly, in good faith, and in the best interests of the owners and the body corporate at all times.”
Kinnear says trustees must understand the consequences of their control and management of the sectional title scheme. “If a trustee is found guilty of gross negligence, he or she can be held personally liable for the financial damages.”
If one considers the trustees’ fiduciary responsibility to the body corporate, it becomes apparent from the common law that they have a duty of trust, as well as a duty of care and skill, says Kinnear.
“Our reader and the other residents may therefore rightly ask whether the trustees have properly exercised the duty of care and skill in accepting the workmanship of the contractor.”
As elected officials, the body corporate may demand that the trustees remedy the current situation, says Grant Berndt from Abdo & Abdo Attorneys in East London.
“Of course, if they’re not satisfied with the manner in which the trustees deal with it, the body corporate may choose not to re-elect them or even to remove them at a special general meeting.”
Only where it appears that the trustees had acted with mala fides (bad faith) or gross negligence can they be held personally liable for their actions, says Berndt.
“In the absence of further evidence it is very difficult to determine whether that was indeed the case in this instance.”
Berndt says the trustees’ documentary evidence in the appointment of the contractor and their endeavours to enforce the warranty should provide some assistance in this regard.
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