By Adjunct Prof Graham Paddock

Prof Graham Paddock
Below is an example of a question on the discussion forum on Paddocks Club. We want to show what is available to our Community Members!


Are the trustees liable for owners’ safety and security?

Question:

Is it possible for trustees to be held personally liable for the safety of the residents in the scheme? We have a conduct rule that states the trustees can make a house rule in respect of the health, safety and cleanliness of the common property. But surely that can’t include an obligation on the trustees to keep residents safe? If that is the case then nobody would want to be a trustee anymore. Can a properly drafted rule impose an obligation on the trustees to keep owners safe? And if they fail, can they be held personally liable?

Graham’s answer:Paddocks Club

There is nothing in the Act or prescribed rules that specifically suggests trustees could be personally liable for harm that befalls residents.
It is the duty of the trustees to use their best efforts to keep the common property in good repair, and therefore safe for use. But if they failed in this regard it would be the body corporate, not the trustees, who would be liable. Of course, if a trustee knew of a danger and failed to inform residents, he or she could be held liable, but the person bringing such a claim would have to prove culpability on the part of the trustee. I have never heard of a case in which this has occurred.

Member:
Can a rule make trustees personally liable for the safety of residents?

Grahams’s answer:

No, I think such a rule would be unreasonable and, as you say, if this were the case nobody in their right mind would agree to serve as a volunteer trustee. Residents must take responsibility for their own safety and that of their possessions, being careful, installing security systems as they feel necessary and taking out insurance.
If, for example, a resident is attacked on the common property by intruders or his or her car is vandalised neither the body corporate nor the trustees would, in the ordinary course of events, be liable to the resident who suffered harm or loss as a result.

Conflict of HOA / ST pet rules

Question:

When a new buyer is permitted by the house rules of the HOA of an estate to own 2 pets, may the sectional title scheme within the estate make a new rule which forbids all pets?

This would be a new conduct rule and would obviously conflict with the estate rule. Is this allowed?

Graham’s answer:

The answer here depends on the provisions of the governance documentation of the HOA.
If the sectional title scheme within the HOA has fairly standard rules then it will certainly have the right to make rules in regard to pets. The issue is whether or not the sectional title scheme is subject to rules made by the HOA. If so, it may be that the HOA rules trump the sectional title rules.
You need to look at both sets of governance documents, particularly at the provisions in regard to the making of rules and see what overlap exists and what priority is provided for. You might also want to check whether or not a condition was imposed in terms of regulation 30 of the Sectional Titles Act that allows the HOA executives to make rules applicable to the sectional title scheme. If such a provision exists it will be in the conveyancer’s certificate issued in terms of section 11 (3) (b) of the Act and filed at the relevant Deeds Registry.

Member:
Your service here is amazing and much appreciated. Thank you.

Article reference: Paddocks Press: Volume 8, Issue 4, Page 4

 

Adjunct Professor Graham Paddock is available to answer questions on the discussion forum for Community Members of Paddocks Club. Get all your questions answered by joining Paddocks Club at www.PaddocksClub.co.za.


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