Every day we receive questions from our readers pointing fingers at their bodies corporate, forgetting that, as owners, they are the body corporate! Our friends at Paddocks have similar issues, as the below article explains.
At Paddocks, we are frequently told by owners that the “body corporate” has told them to do, or not to do, something, or that they have recently been “voted onto the body corporate”. There is a distinction between the body corporate and the management of the body corporate, and this distinction lies with the trustees as the nominated and elected representatives of the members of the body corporate, being the owners of units within the sectional title scheme.
The Sectional Titles Schemes Management Act 8 of 2011 (STSMA), in its definitions, does not clearly define what a body corporate is, and does not even deal with trustees. However, section 2 of the STSMA comprehensively deals with the term “body corporate”, and section 7 of the STSMA similarly deals with the trustees of the body corporate, who are responsible for performing and exercising the functions and powers of the body corporate, as set out throughout the legislation.
As soon as the developer transfers a unit within the scheme to another person (including a juristic person), a body corporate is deemed to be established. All the administration and management provisions of the STSMA then applies and is due to be enforced by the trustees, and followed by the members of the body corporate.
In this regard, within sixty (60) days of the establishment of the body corporate, the developer is obliged to call and convene the first general meeting or inaugural meeting, where, among other matters, the trustees of the body corporate will be elected. Sometimes, the developer or its representatives remain trustees for as long as the developer has an interest in the body corporate.
Membership of the body corporate is not a voluntary one and only ceases when ownership of the unit/s within the scheme is transferred to another person, who then becomes a member of the body corporate. In this regard, irrespective of the number of sections owned, as an owner of units within the scheme, you are a member of the body corporate, and when votes are taken in number, only one vote is cast as a member.
The body corporate’s representatives, namely the trustees (and managing agent and/or executive managing agent) are responsible for the enforcement of the rules and for the control, administration, and management of the common property within the scheme, for the benefit, and in the interests, of all owners.
The body corporate is capable of suing or being sued in its juristic name, and the trustees and/or the members may be held personally liable for the actions or failure of the body corporate. It is therefore important, as members, to ensure that the elected representatives are capable and competent to administer and manage the affairs of the body corporate and uphold their fiduciary relationship with the body corporate, as is required by the STSMA.
This article first appeared on Paddocks