Marina Constas, a sectional title lawyer and author of 'Demystifying Sectional Title', answers frequently asked questions regarding sectional title properties...

1. Question:
The Trustees have not replied to me on many issues that I am concerned about in the running of the complex, for example: maintenance of the building, financial accounts and books of record as well as certain decisions that I do not believe they are entitled to make. Can I stop paying my levies in protest?

Answer:
Definitely not! You are not entitled in law to withhold your levies under any circumstances. If you have a dispute with the Body Corporate, represented by the Trustees, you have legal remedies like approaching a court or invoking Regulation 71 of the Sectional Titles Act 95 of 1986 which is the arbitration provision.

2. Question:
We are rather confused on the issue of cheques. Can a Managing Agent sign our cheques on our behalf?

Answer:
It is important to note that cheques must either be signed by two trustees or by the Managing Agent and one trustee. It would be irresponsible of the trustees to allow a Managing Agent to have the sole power to sign cheques.

3. Question:
Our Managing Agent says that it is legal for him to be a trustee. This seems strange — is he correct?

Answer:
An amendment to Regulation 5 of the Sectional Titles Act now allows a Managing Agent or an employee of the Managing Agent to be a trustee as long as he is an owner of a unit in the building. This amendment is open to criticism as there may be a conflict of interest where a Managing Agent or his employee is wearing two hats.

4. Question:
I would love to install a spa bath in my section. I have been informed that I can do this as it is within my section and does not affect common property.

Answer:
Be really careful with this — you are not entitled to do anything in your section which will cause a nuisance to any other owner. A spa bath has noise implications and just recently an arbitrator has ordered that the mechanism for the bath be removed as it created an unreasonable amount of noise to the unit directly underneath where the bath was installed.

5. Question:
I believe that an urgent meeting must be called by our Body Corporate to discuss certain issues, but only trustees can call meetings. They refuse to do so — what can I do?

Answer:
If you have the support of other owners who make up 25 percent of the participation quotas of the sections you may, in writing, request that the trustees convene a special meeting. If the trustees fail to call a meeting within fourteen days, those owners may then themselves call the meeting.

6. Question:
We have a major problem with tenants in our complex. Many tenants simply do as they please with absolutely no regard to the rules of the complex. Can we evict them?

Answer:
The answer is no. There is no legal relationship between tenants and the Body Corporate. The owner is directly responsible to ensure that his lessee complies with the rules and the Body Corporate has recourse against the owner. In other words, if the matter went to arbitration, the owner would be the Respondent in the matter. The Body Corporate should place pressure on the owner at all times to in turn reprimand a tenant who is not adhering to the provisions of the Sectional Titles Act.

7. Question:
The trustees have just gone ahead and decided that the building is being painted. A special levy has been raised — I cannot afford it — can they make that decision alone?

Answer:
The trustees have delegated powers in terms of the Sectional Titles Act and have the power to decide on issues relating to the maintenance of the building. In fact, this is a statutory obligation and if they fail to ensure that the building is maintained they may face an arbitration hearing. Obviously the decision which they take must be reasonable — they should have obtained quotes properly, etc. They are entitled to raise a special levy.

8. Question:
I am a trustee and I am feeling increasingly vulnerable about my position. We have owners who threaten to take legal action against us personally all the time. Where do we stand as trustees?

Answer:
The law recognises that the role of a trustee is not an easy one — there is no remuneration involved and the job is often carried out over and above other daily commitments. The trustees are therefore indemnified against claims unless the trustee acted dishonestly or grossly negligently. The definition of gross negligence could be the subject of a small book, save to say that the trustees must really have acted extremely negligently.

Marina Constas is a sectional title lawyer and author of 'Demystifying Sectional Title'.

Click here if you have a question for Marina.

'Demistifying Sectional Title' is available by e-mailing ldacosta@bbmlaw.co.za or by phoning (011) 622 3622.