Constas urges trustees to arm themselves with the basics of sectional title law, and owners to know their committee and ensure that they are well represented. "This is undoubtedly a difficult and often thankless job, and I do not want to discourage anyone from taking it on, but it should not be underestimated."
A trustee's most important duty is to insure the building. Further obligations include keeping books of accounts and records, determining monthly levies, signing cheques and depositing body corporate funds. Trustees also appoint, manage and pay agents and employees involved in the operational running of the building - including managing agents, attorneys, contractors and gardeners.
While trustees are well protected by the law in terms of being sued in their personal capacity, Constas cautions that they should be aware that their indemnity does not extend to dishonesty or gross negligence. "If a trustee acts dishonestly or in a manner that is grossly negligent, he may be sued by the body corporate. The question of what may be construed as grossly negligent is open to interpretation by the courts, but an example of conduct that may be deemed grossly negligent would be failing to insure the building and it burns down."
Not complying with safety regulations, as set out in the Occupational Health and Safety Act - like having fire extinguishers on every floor - may also be considered gross negligence in the event of a fire. "Gross negligence is, however, difficult to prove, and this finding by the courts is more the exception than the rule," she notes.
Reflecting this, Constas cites a recent Western Cape High Court case in which trustees were being sued for gross negligence after someone slipped on a mess left by contractors working at the complex. "The court found that reasonable steps had been taken to ensure that the property was in a safe condition, and the trustees were found not negligent in this case."
To ensure that their buildings are safe and comply with legal requirements, Constas recommends that trustees familiarise themselves with the basics of the Occupational Health & Safety Act, as well as relevant portions of the National Building Regulation & Buildings Standards Act and their area's municipal bylaws.
"There are requirements for the positioning and maintenance of fire fighting equipment that all trustees should be aware of, as well as the necessity to have swimming pools enclosed with a wall or fence of a specified height. Not complying with some of these things could land trustees on legal hot water.
"Being a trustee demands more time, effort and hard work than many people realise. On the positive side, however, a trustee has the opportunity to hopefully contribute constructively to the building and the value of his property. He has some control over the affairs of the complex and its successful operation. I believe that the future of the sectional title industry lies largely in the hands of trustees," she concludes.
