By Ané de Klerk
Whether in your capacity as a managing agent, employed to manage schemes on behalf of others, or as a trustee investing the limited free time you have to serve your scheme, one of the main drawbacks of getting involved in scheme management is the fact that others often expect you to be at their beck and call 24/7. Somehow it has become the norm for owners and tenants to feel entitled to Whatsapp relevant role players at any hour and to demand immediate feedback to questions and queries. A symptom of our time? Perhaps. But let’s look at what limits we legally can and arguably should set in place to prevent the industry from becoming one very few are willing and able to serve and work in.
1. Use the Legislated Complaint Form
One of the main things people love to do via Whatsapp (whether in groups or directly to someone with a listening ear) is complain. Because sectional titles schemes force people to live or work in close proximity to one another, opportunities for complaints are endless – with noise and parking related complaints being the most common.
While it is vital for all scheme role players to have the opportunity to be heard, it is also important to manage the process of how this is done effectively. A managing agent spending 30 minutes of their work day on the phone with a frustrated tenant simply does not amount to an effective use of time and human resources. In stead, any owner or tenant wishing to complain should be advised to use the official legislated Complaint Form, annexed to the Sectional Titles Schemes Management Regulations as part of Annexure 4.
This form frees up the management team’s time by forcing the complainant to sit down, gather all relevant facts and formulate them in a way that is logical and easily understandable. Sitting with and processing information in such a way also allows one to remove some of the (often very valid, but unfortunately unhelpful) emotion before relaying the relevant information to someone else.
Trustees receiving Whatsapp messages after hours or having occupants knock on their door to air grievances should also advise the relevant person(s) to use this form to ensure that all complaints can be dealt with in an appropriate, professional manner.
2. Enforce Business Hours
If your Management Agreement provides for the managing agent to be contacted during normal business hours only, enforce this. If it does not, consider including this clause in your Management Agreements going forward. There are very few matters that are so urgent that they cannot be dealt with at 8am the next day. For those matters, consider compiling an emergency contact list and circulating this to all occupants – for example, include the name of a reputable plumber that can be called if a pipe bursts in the middle of the night and of the scheme’s security company to use if any incident occurs that could affect the safety and security of those residing in the scheme.
To protect trustees, one could also add a Management Rule addressing how and when trustees can be contacted – for example, only during business hours at a certain, dedicated email address. Remember that a unanimous resolution would have to be passed to authorise such a rule. While such a resolution will not necessarily be easy to obtain (especially in bigger schemes), it could add great benefit to the scheme in the long run as people would be much more likely to be willing to serve on the board of trustees now and in the future with such a rule in place.
3. Stick to contracts and rules – strictly
This can be tricky in practice. Trustees, and especially paid managing agents, are often expected to go “above and beyond” for others, but it is important to remind owners and tenants that in some instances it may even be illegal to do so. For example, if a managing agent has been appointed exclusively to assist with the preparation of budgets and collection of levies (so to perform financial functions), they would be acting beyond the scope of their authority if they were to manage a noise complaint. Managing agents are limited by what they are authorised to do in terms of their contract. Sectional titles schemes legislation places far, far less obligations on managing agents than most people think. Before you act on an assumption that a managing agent has failed in an obligation toward the scheme, first request a copy of, and peruse, the agreement between them and the body corporate to ascertain whether they are even legally authorised to perform the function you believe they have neglected.
Similarly, trustees are bound by legislation and the scheme’s rules. If the body corporate has rules in place that regulate how others are to communicate with the trustees (see point 2 above for an example) then the trustees would in fact act outside of their authority if they were to engage with others on a different platform/in a different way. We often feel social pressure to be available to others, but must consider the longevity of such practices. Will being available to occupants after hours make you less likely to allow yourself to be nominated for another term? Rather than having the body corporate lose a valuable member of the management team, apply the existing contract or rules strictly (and refer others to them when necessary).
Learned something new when reading this article? Knowledge is our passion and we believe our UCT Sectional Titles Schemes Management online short course, written and presented by the author of this article, allows anyone interested in broadening their knowledge on the subject the perfect opportunity to do so. Contact us at courses@theadvisory.co.za to find out more.
Specialist Community Scheme Attorney (BA, LLB), Ané de Klerk, is a Director of The Advisory, a boutique consultancy specialising exclusively in community schemes law. Her focus is legal education, which includes presenting seminars and running online and in-person training programs and courses.
