By The Paddocks Club Team
Below are examples of two questions on the Paddocks Club discussion forum. We want to show you what is available to our Community members!
Owner’s son fell on slippery steps
An owner informed the trustees in November 2014 that the stairs at the front entrance is very slippery. To date the trustees have not done anything about it.
The owner has now informed us that his son fell on the steps and hurt his back. It was not a serious injury, but the owner has advised that it can in the future have an effect on the sons’s career, as he is a pilot.
Please advise whether he can hold the trustees responsible. I know that he will have to prove that the trustees were grossly negligent.
There is a case in the library that deals with a slip and slide case: Du Plooy v The Cascades Body Corporate and Another (275/10)  ZAWCHC 62 (12 March 2013). Mike Addison wrote an article on this case: article
Mr Du Plooy claimed damages from the BC for an injury sustained as a consequence of slipping and falling on slime and moss that had accumulated on the floor of the washing line area (common property) at the Cascades Sectional Title Scheme. He alleged that the fall was caused by the negligent breach of a legal duty, owed to him by the BC to take steps to prevent him from slipping and falling in this area.
The Judge said:
“The body corporate is in virtually the same position as landlord, hotel owner or shopkeeper, who by virtue of his or her control over property, has a legal duty to take reasonable steps in respect of maintenance and supervision to ensure that the property is in a safe condition with reference to the type of person who may normally and reasonable make use of it.”
There is nothing in the Act or rules that specifically suggest that trustees could be held personally liable for the possible harm or damage suffered if the trustees fail to keep owners or occupiers safe. This is a very onerous duty and could result in no one being willing to serve as trustee. The trustees are in a fiduciary relationship with the BC and the STA expands on this relationship of being entrusted with this duty of care. The trustees do have the duty to maintain the common property in good repair and therefore safe for use. The trustees must make very sure that the common areas are clean, well maintained and safe. However it is the BC and not the trustees that would be liable, unless the trustee knew of some danger and did not take steps to warn the owners or residents or to remedy such danger. In order to discharge its legal duty to take care that the common property at the development was safe, the BC is obliged to take no more than reasonable steps to guard against foreseeable harm to owners and other users of the common property.
What are reasonable steps:
“Whether in any particular case the steps actually taken are to be regarded as reasonable or not depends upon a consideration of all the facts and circumstances of the case. It follows that merely because the harm which was foreseeable did eventuate does not mean that the steps taken were necessarily unreasonable. Ultimately the inquiry involves a value judgment.”
In terms of PMR 29(2)(a)(i) and (ii) the trustees must take all reasonable steps to insure the owners and the trustees and to keep them insured against liability in respect of death, bodily injury or illness; or loss of or damage to property, occurring in connection with the common property, for a sum of liability of not less than R100 000, which sum may be increased from time to time as directed by the owners in general meeting.
In terms of PMR 12 every trustee, agent, other officer or servant of the BC shall be indemnified by the BC against all costs, losses, expenses and claims which he or she may incur or become liable to by reason of any act done by him or her in the discharge of his or her duties. However, trustees will not be entitled to such indemnification if the costs, expenses or claims were caused by his or her mala fide or grossly negligent act or omission. The question as to whether an act or omission is grossly negligent is open to interpretation by the courts. It is generally accepted that gross negligence is hard to prove and that a favourable decision by the court is more the exception than a rule.
Owners must also take responsibility for their own safety by out insurance.
Bricks stored on common property by trustees
The Trustees of one of the complexes that we manage had to replace the paving bricks at the entrance to their complex, which was damaged by storm water flowing in from the street. The sand under the bricks was washed away. After the repairs the Trustees saved a substantial amount of the old bricks which were still in very good usable condition. The bricks were stack in one corner of the common property where it is out of the way and not a risk for kids who might find it a nice playing area. The bricks will be used in the new financial year (Sept 2015) to repair some other places on common property which are in need of repairs. This replacement/repairs is on their priority list for the next financial year.
The problem: One of the disgruntled owners in the complex who complains about everything the trustees do, complained about the fact that he can see the stored bricks from his bedroom window which is on the 2nd floor of the unit. It is not in his way otherwise and can not be a sore eye for visitors to his unit etc.
He has now put the Trustees on terms to remove the bricks within one week or he will take action against them. It will be a big loss for the body Corporate if the trustees should just get rid of the bricks by just having it removed in stead of using it in the new financial year.
There is no other place on site where the bricks can be stored without a risk to kids in the complex.
Question: Can the Owner force the the trustees to remove the bricks (property of the body corporate) from the common property just because he can see the neatly packed stack of bricks from the 2nd floor bedroom?. He can not see it from any other place in his section.
No, the owner cannot force the trustees to remove the bricks.
The reason is that the trustees are responsible to do all things reasonably necessary for the control, management and administration of the common property in terms of section 38(j). Storing the bricks for a couple of months on the common property is not unreasonable.
The owner would need to have the support of the majority of the owners to pass a section 39(1) directive to force the trustees to remove the bricks.
Article reference: Paddocks Press: Volume 10, Issue 3, Page 5.
Professor Graham Paddock, Anton Kelly and Carryn Durham are available to answer questions on the Paddocks Club discussion forum for Community members. Get all your questions answered by joining Paddocks Club.
This article is published under the Creative Commons Attribution license.