As published on Property24
A Property24 reader says he is fighting for the rights of residents and doesn’t have the support from the rest of the sectional title trustees. An expert advises…
Q: I am a trustee in one of the complexes in Boksburg. I am fighting for the rights of the residents and I don’t have support from the rest of my trustees. My concerns are the following:
– Disconnection of electricity taking place on a regular basis without a court order
– The charges of the managing agent are ridiculous, disconnection R250, re connection R250, emails R150, sms R15
Are these charges in line with legislature? According to legislature a managing agent can endure only for 3 years but this MA is here since 2001?
This MA has taken one of the owners to court for apparently arrears. My question is, who decides to take a resident to court? Is it the Body corporate or the MA? The owner’s lawyer has requested from the MA lawyers to provide them with the written mandate from the trustees where a decision was taken to take her to court, also requested the minutes and attendance register but they are slack in providing that. Access to information is being denied here or there was no such decision taken.
Auren Freitas dos Santos founder and director at The Advisory responds:
1. Is it legal to disconnect electricity without a court order?
No. Our courts have consistently held the view that a body corporate is not entitled to deprive a person of electricity, water or even access to the complex without following due process of the law. In other words, the trustees and the managing agent cannot take the law into their own hands by using alternative methods to strong arm an owner to fulfil their obligations.
2. Can a managing agent charge owners with “add-on” fees such as disconnection and reconnection fees and communication fees?
No. In terms of the prescribed management rules the body corporate must not debit a member’s account with any amount that is not a contribution or a charge levied in terms of the Sectional Titles Schemes Management Act or the scheme’s rules without the member’s consent or the authority of a judgment or order by a judge, adjudicator or arbitrator.
3. Can a management agreement endure for more than three years?
Maybe. This reader is correct that the prescribed management rules provide that a management agreement may not endure for a period longer than three years. The effect of this provision is that the agreement will automatically terminate at the end of the three year period. It is important to understand, however, that the members of the body corporate or trustees may by ordinary resolution decide to renew the management agreement when it expires.
4. Can a managing agent decide to take legal action against owners without the trustees approval?
Maybe. The body corporate may, on the authority of a written trustee resolution, delegate to a managing agent such of their powers and duties as they deem fit, including the power to institute legal action against defaulting owners. If such a delegation has been made, the management agreement must specify the extent to which powers, functions and duties of the body corporate and the trustees are delegated to the managing agent and stipulate any conditions that may be applicable.
5. What can an owner do if they have been wrongfully denied access to information or documents?
The answer to this question can be found in the Community Schemes Ombud Services Act. Should the reader believe that he or she has been wrongfully denied access to information or documents he or she may make an application to the Community Schemes Ombud Service for an order requiring the body corporate to make such information and documentation available within a specified time.
