Complex management issues

This week a reader asks the Property Poser experts whether a managing agent is allowed to lead the body corporate of a sectional title complex and give advice.

In addition, as a trustee of the complex in which he resides, he is concerned about a situation in which one or two of his fellow trustees are trying to take control.

Schalk van der Merwe - Rawson Properties

Schalk van der Merwe – Rawson Properties

According to Schalk van der Merwe from Rawson Properties Helderberg, a management agent is an individual or firm appointed by a body corporate or homeowners’ association to manage the property on its behalf.

“Although the agent has the contractual responsibility for the management of the property, the ultimate responsibility will always rest with the trustees of a body corporate or the directors of a homeowners’ association.”

Of course, says Van der Merwe, if a managing agent has been appointed, it would only be to the trustees’ advantage to at least consider the agent’s advice, as he or she would be typically knowledgeable on the subject.

“However, it’s not compulsory for the trustees to appoint an agent, and many smaller schemes manage their affairs without assistance due to the competence and active participation of the owners.”

Especially in medium to large-sized schemes, the workload involved in managing the affairs of a body corporate and lack of compensation usually encourages trustees to appoint a managing agent, says Van der Merwe.

“In terms of the prescribed management rules, the agent must be appointed by written contract for an initial period of one year, with one month’s written notice of termination to be given by either party thereafter.”

The scope of the managing agent’s services will be specifically stipulated in the contract of appointment, says Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch.

Lucille Geldenhuys Attorneys

Lucille Geldenhuys Attorneys

“Generally, however, he or she will control, manage and administer the common property as well as any obligations the body corporate has to any public or local authority on behalf of section owners.”

Geldenhuys says the functions delegated to the agent usually include the responsibility and authority to collect the levies paid by the owners.

“With regard to the second issue, although it may appear that one or two trustees are trying to take control, they have very limited real power.”

When it comes to voting, each trustee has only one vote and a minority will therefore not be in a position to affect the affairs of the complex substantially without further support from the other voting trustees, says Geldenhuys.

“If a trustee continues to act improperly and in contravention of the position of trust he or she holds, steps can be taken to remove that person.”

Geldenhuys says the prescribed rules allow the owners to remove a trustee at a general meeting by passing an ordinary resolution to that effect. “However, the notice calling the meeting must disclose the intention to vote upon this removal.”

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