Written for Property Poser
A resident of a sectional title complex has approached the Property Poser panel with some concerns about the actions of the trustees.
The reader explains that there are ten units in his complex and that three trustees were elected at the last annual general meeting.
He asks whether a person who is not a unit owner may be elected as trustee and whether the trustees may, without the owners’ consent or participation, decide on major improvements to the complex.
The reader claims that the trustees have unilaterally effected improvements such as painting the complex and building boundary walls.
He says their actions have resulted in heavily increased levies to fund these alterations.
According to Stiaan Jonker of Smith Tabata Attorneys in Port Elizabeth, a sectional title scheme is controlled and managed by a body corporate.
“The Sectional Titles Act makes provision for the appointment of trustees to take care of the complex management. They are appointed by the owners at the AGM.”
Jonker says the trustees are expected to act honestly and in the best interests of the body corporate.
“At the AGM, the trustees present their annual budget to the body corporate, who will either accept it or request changes.”
Therefore, they cannot simply act on a whim of their own, as in this instance, says Jonker.
“The trustees are merely the custodians who carry out the decisions made at meetings.”
Jonker says trustees may only effect or remove improvements of a luxurious nature (desirable but not necessary) on the common property by unanimous resolution of the owners.
“Should the trustees wish to make or remove non-luxurious improvements, which are defined as necessary or useful, they must follow a prescribed procedure to notify owners of the intended changes in advance.”
Then if any owner requests that a special general meeting be held about these improvements, the trustees must arrange for the meeting to take place, says Jonker.
It’s important to ensure that the people who are voted in are competent and responsible, says Susan Chapman from Rawson Properties PE Platinum.
“They should understand their role and be willing and able to carry it out within the confines of the Act.”
Chapman says anyone who is legally nominated and elected can be a trustee.
“This means that it can be a registered owner, a relative or spouse of an owner or a tenant.”
As long as the majority of the trustees in the scheme are owners or the spouses of owners, it constitutes a valid board, says Chapman.
“An alternate trustee can also be appointed if one of the trustees is away for an extended period of time and needs someone to act on his or her behalf during this time.”
Chapman says the replacement holds the same powers and duties as the actual incumbent.
“The alternate trustee only ceases to hold this position if the person whom he or she is standing in for ceases to be a trustee or if the alternate’s trusteeship is revoked by other owners at a general meeting.”
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