Body Corporates MUST do proper maintenance - PDF - PDF by monkey6

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									ISSUE NO. 15

MAY 2008

Body Corporates MUST do proper maintenance
Article by KAREN BLEIJS
The owners of units in a Sectional Title scheme have a legal obligation in terms of the Sectional Titles Act to repair and maintain the common property in their capacity as “The Body Corporate”. “Maintain and Repair” – like a Friday night thriller, is one CURASURE of those very scary phrases Maintenance where the hair on the back Specialists of the neck of every owner in 082 458 5260 a Sectional Title scheme should literally stand on end! If a Body Corporate is tardy in its duty to maintain or repair, or reneges on this duty in any way, a Sectional owner can approach the court for an order to compel the Body Corporate to do so. The Body Corporate will bear the cost. Other remedies that can similarly significantly impact on the pockets of every member of a scheme are also available to owners or third parties. In appropriate circumstances an owner can succeed with a damages claim against a Body Corporate where he has suffered damages to his section as a result of the Body Corporate’s neglect to meet its maintenance obligations. So, for example, if 3 years after an owner buys a unit in a scheme where he persistently notifies the Trustees that his ceiling is sagging (which they ignore) and the roof eventually collapses killing the families pet Komodo Dragon, believe me there’s going to be hell to pay – not only from the SPCA but from the owner

Since the Body Corporate is considered to be a legal person, it can be sued delictually.
She sued the Body Corporate for over R250 000 and the Court found that the Body Corporate had committed a negligent breach of its duty of care in not warning users that the lift might not stop flush with the floor. Image if the claim had been for R2 or R3 million and the public liability insurance was insufficient to cover the claim! The members would simply have had to fork out the difference in accordance with the participation quotas of their respective sections. Another recent instance involved a staff member of a building in Hillbrow. She fell from the 5th to the 3rd floor of the fire escape. Investigations revealed that a step had broken because

the fire escape was rusting and in a state of extreme disrepair. Thankfully the staff member survived the fall with minor injuries only and Workmen’s Compensation paid for her hospitilisation and medical expenses In law obligations mean nothing if there are no sanctions for non-fulfilment. In this instance there are too many sanctions to risk nonfulfilment!

himself! There are numerous bases upon which a person can institute a claim against another in law. One of these is “delictual liability”. termed

In essence this refers to a case where through fault, in civil (as opposed to criminal) law, damage is caused to another person and recompense for such damage is claimed in the form of money. Since the Body Corporate is considered to be a legal person it can be sued delictually.

Two interesting case studies
A very good example of this is the actual case that occurred in Jo’burg a few years ago. An elderly lady visiting her son in a sectional title building fell headfirst from a lift that had not stopped level with the floor.

Another flaw in the human character is that everybody wants to build and nobody wants to do maintenance.
-- Kurt Vonnegut (1922 - 2007), Hocus Pocus

Maintenance is the new cancer
Article by FREDERIK NEL
With rising interest rates and the general increase in maintenance costs, maintenance is one of those dreaded budget expenditure and special levy items in Bodies Corporate. A quick look at how maintenance is managed and we soon realize why budgeting of maintenance has become such a mismanaged or misdiagnosed item. If we compare buying a new car to buying a new home in a Sectional Title Scheme, some apparent differences become clear. The moment we drive away in our new car, we can be assured that maintenance plans, freeway plans, extended warrantees, roadside assist and a host of other maintenance features will be driving with us. It does not come free of charge and is built into the cost of the vehicle and repayment package. In contrast, maintaining a Body Corporate property can be compared to hiring a rental car. The moment we step into one, it becomes a 4x4, roadster and a rally car combined. A shared principal is: the older the vehicle or property, the less we are willing to spend on maintenance. Owner’s apathy towards maintenance planning and cost are a real concern. Not all Bodies Corporate are guilty of bad maintenance planning. A quick test is to find out if your Body Corporate has a written 3, 5 and 10 year maintenance program on file. In addition, we should have a maintenance reserve to implement our maintenance strategy. With the prospects of trustees changing every year, it is crucial to implement an ongoing strategy that is managed on a long term basis.

Concrete Cancer, damp and waterproofing failures are just some of the maintenance cancers in Bodies Corporate that must be arrested to prevent long term damage and superfluous expenditure. To curb these failures, the Body Corporate should invest in regular maintenance audits, reports and forecast from autonomous industry professionals to ensure correct planning and budgeting.

SMILEYS
Marriage is nature's way of preventing people from fighting with total strangers. The reason companies allow personnel to take leave is to remind them that the company can function quite well without them. When you are dissatisfied and would like to go back to youth, think of Algebra. Age does not always bring wisdom - it sometimes comes alone.

Start a Maintenance Book of Life
A proficient maintenance strategy must be based on an accurate, independent and technical assessment of your property, and linked to detailed specifications for maintenance or refurbishment. Preventative maintenance requires a paradigm shift. How we view maintenance must incorporate short, medium and long-term strategies and address the causes of failures. We will need to start our own Maintenance Book of Life, as it does not seem to come issued the day we buy into a Sectional Tile Schemes. I recommend that Bodies Corporate employ a Building Envelope Professional to assist them with maintenance planning and implementation.

QUOTES ON WEALTH
It is pretty hard to tell what does bring happiness; poverty and wealth have both failed. -- Kin Hubbard (1868-1930) Nothing is more intolerable than a wealthy woman. -- Juvenal (55 AD-127 AD) It is only when the rich are sick that they fully feel the impotence of wealth. -- C. C. Colton

FAQ's
By Elmo Stuart
Should levies include reserve for maintenance? In my view, the Trustees of a Body Corporate have no discretion in this regard, as this obligation is expressed in the provisions of Section 37(1)(a) which specifically stipulates that the levy fund should include reasonable provision for future maintenance and repairs. The Body Corporate must prepare a budget in accordance with the provisions of the Act and Regulations. It is compulsory for the members of a Body Corporate to contribute to the levy fund. This is common sense. How can you expect to maintain the value of your Sectional Title Unit if you fail to maintain your Unit to a reasonable standard? You can only do so if you have funds available for which the Body Corporate must budget.

Block for Managing Agents
Special offer for an assessment of the maintenance requirement of your complex. As is clear from this newsletter proper maintenance of property is of utmost importance. To do proper maintenance the first step is to make an assessment of the present state of maintenance in the complex. This can be done by an inspection and report of the Trustees. If the Trustees are experienced in this field such an inspection and report can be valuable. Alternatively we advise that the Body Corporate make use of people specializing in this field. Pro Admin have negotiated a special deal with Curasure, a company that specializes in the planning and management of maintenance of complexes, to offer an initial assessment and priority list for maintenance at a very competitive price. The assessment will include a five year maintenance program for the Trustees. This special offer will be available until the end of July. If you feel that this can benefit your complex please contact your portfolio manager at Pro Admin and request further details.

Editor: Org Potgieter (editor@namasa.co.za) Contributors this issue: Karen Bleijs (kbleijs@vrblaw.co.za), Frederik Nel frederik@curasure.co.za, Elmo Stuart (eys@eystuartinc.co.za). Cartoonist: Rufus Papenfus. Publisher: DATASTAT cc : Lucinda Britt (admin@namasa.co.za) P.O. Box 731330, Fairland, Johannesburg, 2030. Copyright: DATASTAT cc : Nothing in this newsletter may be reproduced in whole or part without the written permission of the publishers. Disclaimer: The views expressed are not necessarily those of the publisher, editor or anyone else but the author of the article or editorial.

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