Sean Radue – Radue Attorneys
The management of a body corporate appears to be a thorny issue for two readers who have approached the YourProperty expert about the roles and responsibilities of a trustee and chairperson respectively.
In the first question, the reader mentions that the bona fides or good faith of a particular trustee is dubious, as he has tried to feed work to his own company on more than one occasion.
The reader explains that the trustee bypasses processes such as the submission of quotations, while the entire board fails to act on agenda items, which leads to a lack of confidence in their abilities.
He would like to know if the trustees could be asked to step down and on what basis.
See the reader’s question here.
According to Sean Radue of Radue Attorneys in Port Elizabeth, the body corporate has an important role to play in the continued functioning of a sectional title complex.
“Some of these functions are formal, such as administering finances, including the borrowing of money, seeing to insurances and the like while others have a more direct and immediate effect on the sectional title owners.”
Examples of the latter would be maintenance of the common property, including seeing to the mowing of the lawns and certain repairs, says Radue.
“A trustee holds a fiduciary position and is obliged to exercise a duty of care and skill, acting honestly and in good faith in his or her role as a trustee.”
He says this means always acting in the best interests of the body corporate and not in a manner that allows the trustee to derive any undue economic benefit from the body corporate.
“As the trustee in question and the rest of the body corporate appear not to care about the interests or active administration of the scheme, it may be sensible for them to be removed and to appoint a managing agent.
“The simplest way to remove a trustee is for the owners to call a special meeting with a view to removing the offending office-bearers and replacing them with new ones.”
Radue says another reader has raised a similar question about the function of a chairperson of the board of trustees.
The second reader, he says, asks specifically whether the chairperson is required to live in the complex and also whether he or she must take minutes at the meeting of the trustees.
See the reader’s question here.
“The chairperson does not have to be an owner of a section in the complex. A managing agent could, for example, act as chairperson to facilitate the flow and structure of a meeting of the body corporate.”
Radue says there is also no absolute requirement that the chairperson should keep the minutes of meetings of the body corporate.
“It may however be practical to do so as the chairperson should be keeping record of the voting of the trustees. However, another trustee or the managing agent could be entrusted to keep the minutes if they are more experienced record keepers.”
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