Written for Property Poser
A reader who has taken issue with the trustees of her complex has approached the Property Poser panel for help.
She feels that the trustees are taking liberties with their authority, enriching themselves and taking care of problems that negatively impact on their own units before considering the needs of the other owners.
The reader has done some research of her own and seems to think the trustees are not acting illegally but rather unethically.
She gives the example of claims being lodged against the body corporate by owners in the complex. According to her, the trustees and managing agent always give an excuse as to why such a claim cannot be paid but similar claims lodged by the trustees themselves are paid without a problem.
In addition, says the reader, parking bays are always allocated in favour of the trustees and lights that really only aid or enhance the trustees’ units are installed in such a way that they are regarded as an expense of the complex.
The reader has not advised as to what steps have been taken, if any, to remove a trustee or whether any of the issues have been addressed with them, whether informally or under the banner of a formal meeting.
It would appear that no complaints have been lodged and that the affected owners are quietly seething and becoming increasingly disgruntled with their lot in the complex.
A starting point would be to confirm the nature of the position of a trustee, says Schalk van der Merwe from Rawson Properties in Somerset West, Cape Town.
“He or she is in a fiduciary position with respect to the body corporate because such a position permits the control and management of the assets and funds of another.”
In simple terms, such a fiduciary obligation requires the trustee to act honestly and in good faith in exercising the duties associated with such a position, says Van der Merwe.
“A trustee should also not receive any financial benefit from the position unless entitled to such a benefit and where such a gain is not in conflict with the interests of the body corporate.”
Van der Merwe says the actions of the trustees in question should be evaluated against the aforementioned two concepts.
Should the majority of the body corporate feel that the actions of the trustees are untenable, for whatever reason, the next annual general meeting could be used to nominate and appoint new trustees, says Grant Hill of Miller Bosman Le Roux Attorneys in Somerset West.
“If the period until the next annual general meeting is too long to wait to effect the removal of one or more of the troublesome trustees, a special general meeting could be called.”
Subject to a majority vote, the trustee in question can be removed, says Hill.
“Where the trustee in question is not an owner in the complex, the contract of that trustee should be considered first to ensure that his or her termination does not result in any penalties for breach of contract or the like and that the removal falls within the agreed parameters of the provisions of the contract.”
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On behalf of:
Rawson Properties Helderberg & Miller Bosman Le Roux Attorneys