Bodies corporate you have a fiduciary duty to assist residents
I own a middle-floor flat in a Sandton estate. Unfortunately, six months after I purchased the apartment, the unit above mine had a leaking kitchen pipe that leaked into my property and has damaged my walls.
I have contacted the body corporate and they notified me that it’s the owner in the above unit that needs to cover the costs for the damages caused. But the owner of the property is refusing to pay or give me his physical address for my lawyers to send though a letter of demand. I have asked the body corporate for help but they had notified me I need to go through the legal system and there is nothing they can do to help. – Renee
Hi Renee, the principles of neighbour law dictate that sectional title property must be used in such a way as to avoid unreasonable prejudice to neighbouring owners or occupiers.
The key provisions applicable to the present query can be found in the new Prescribed Management Rules, which came into effect on 7 October, 2016, together with the newly promulgated Sectional Titles Schemes Management Act (“the Management Act”). However, the starting point of this analysis is section 13 of the Sectional Titles Act which prescribes the duties of owners in sectional titles schemes and provides, inter alia, that:
13(1) An owner must—
(a) permit any person authorised in writing by the body corporate, during reasonable hours and on notice (except in case of emergency, when no notice is required), to enter his or her section or exclusive use area for the purposes of inspecting it and maintaining, repairing or renewing pipes, wires, cables and ducts existing in the section and capable of being used in connection with the enjoyment of any other section or common property, or for the purpose of ensuring that this Act and the rules are being observed;
(c) repair and maintain his or her section in a state of good repair and, in respect of an exclusive use area, keep it in a clean and neat condition;
(d) use and enjoy the common property in such a manner as not to interfere unreasonably with the use and enjoyment thereof by other owners or other persons lawfully on the premises;
(e) not use his or her section or exclusive use area, or permit it to be used, in a manner or for a purpose which may cause a nuisance to any occupier of a section;
How this applies
It should be clear that the owner of the unit above is breaching each of (c), (d) and (e) by failing to properly maintain their pipe and thereby causing damage to the owner below.
Rule 30 of the prescribed management rules, in turn, obliges the body corporate, through the trustees, to take all reasonable steps to ensure that an owner or any other occupier of a section does not (a) use the common property so as to unreasonably interfere with other persons lawfully on the premises, in breach of section 13(1)(d) of the Act; (b) use a section so as to cause a nuisance, in breach of section 13(1)(e) of the Act.
The above provision therefore constitutes a statutorily prescribed duty and, in my opinion, it would not be unreasonable to regard the trustees’ refusal to assist meaningfully to be a breach of their fiduciary duty for which they could very well be held liable in their personal capacity.
Prescribed management rule 31 thereafter provides that:
(2) If despite written demand by the body corporate, a member refuses or fails to —
(a) carry out work in respect of that member’s section ordered by a competent authority as required by section 13(1)(b) of the Act; or (b) repair or maintain a section owned by that member in a state of good repair as required by section 13(1)(c) of the Act; and that failure threatens the stability of the common property, the safety of the building or otherwise materially prejudices the interests of the body corporate, its members or the occupiers of sections generally, the body corporate must remedy the member’s failure and recover the reasonable cost of doing so from that member; provided that in the case of an emergency, no demand or notice need be given to the member concerned.
- The owner of the above unit is obliged to repair and maintain his or her section and to ensure that his or her use of her section does not cause a nuisance to any occupier of a section. By allowing the leak to cause damage – that is, by failing to adequately maintain the pipes within their section – he or she is breaching their obligations.
- The body corporate – represented by the trustees – is obliged to do all things reasonably necessary to enforce the rules and ensure that the owners carry out their own obligations arising from the Act and the rules. Failure to do so is also a breach of their obligations, but not only for failing to demand that the infringing owner resolves the situation, but even if they had, and the owner refused to do so, they may not simply turn around and tell the owner in the unit below to “go through the legal system” as there is “nothing they can do to help”; instead, in these circumstances, doing “all things necessary” would include access to the property – as they are entitled to do in terms of section 13(1)(a) referred to above – and personally attending to fixing the leaking pipe.
Regarding the request for the owner’s information, it is undeniable that the right of the owner above to have their name and contact information protected is subordinate to the owner below’s interest in urgently attaining this information in order to prevent further damage to the unit, or take personal action where the body corporate is being unhelpful and therefore the infringing owner would not be entitled to hide behind the Protection of Personal Information Act were the body corporate to pass on his or her information. In any event, the body corporate is obliged to offer at the very least a “good cause” for withholding the information and their failure to do so is a willful dereliction of their duties.
It would appear that the body corporate has not taken the time to properly exercise its discretion in this matter, notwithstanding one of the primary reasons for, and functions of, a body corporate being to provide assistance to effectively resolve precisely these kinds of dilemmas and actively protect the interests of owners – and accordingly the scheme-at-large – from prejudicial conduct, and damaging conduct.
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Who is Marlon Shevelew?
Marlon Shevelew is the director of Marlon Shevelew and Associates Inc, a law firm specialising in rental property, sectional title, contractual, consumer and company law. The firm is the recipient of more than 45 international property law awards. Marlon is the current author of PayProp’s rental documentation and preferred rental property attorney to the Institute of Estate Agents South Africa (IEASA), the Rental Housing Tribunal Western Cape, presenter of the Advanced Residential Property Law Seminar endorsed by the University of Cape Town and the director of the top rental property law firm in the country, according to several international publications. Marlon also created the unique Rental Retainer Club and RentDoc which offers clients affordable legal fees for rental property-related matters. Marlon is contactable on firstname.lastname@example.org anytime for more information on these services.