Audit and review requirementsOctober 22, 2019
What is a Living Will?October 22, 2019
Mr. Du Plooy, as Plaintiff, slipped and fell in the common area of the scheme and initiated action against the managing agent and the body corporate for damages, in that both the managing agent and the body corporate failed in keeping the property in a safe condition for ordinary use, and as a result of this failure he suffered damages.
The functions of the body corporate are contained in Sections 3 of the Sectional Titles Scheme Act, 2011 (hereinafter “the Act”) and reads as follows: A body corporate must perform the functions entrusted to it by or under this Act or the rules. Such functions include establishing and maintaining an administrative fund that is sufficient to cover the estimated annual operating costs regarding the repair, maintenance, management and administration of the property (including reasonable provision for the future maintenance and repairs). The court in the Du Plooy matter found that the body corporate is in practically the same position as a landlord, hotel owner or shopkeeper, who by virtue of his or her control over the property, has a legal duty to take reasonable steps in respect of maintenance and supervision to ensure that the property is in a safe condition for ordinary use.
The most important issue between Mr Du Plooy and the body corporate was whether the body corporate negligently failed to discharge the legal duty which it owed to Mr Du Plooy. The body corporate did not delegate its duty to maintain the common property to ensure it is safe and based on this, the body corporate will still be liable to maintain the property, as provided for in the Act. As a legal entity, the body corporate could not in itself discharge the duty and had to take reasonable steps to have the duty discharged.
Mr Du Plooy was a competent and capable person that could ensure that the property was safe for ordinary use and the body corporate trusted that he would report any safety hazards that needs to be addressed. Although this may not have amounted to a delegation of the body corporate’s legal duty to Plaintiff, it meant that Mr Du Plooy was contractually obliged to execute the duty on behalf of the body corporate.
With regards to the duty of the managing agent, the court found that the duties of the managing agents are of an administrative nature and that it would be unusual to burden the managing agents with the positive legal duty to ensure the property remains safe for ordinary use. There is no statutory duty cast upon the managing agent to be responsible for the common property or for the safety of those who may use the property for development. It is the duties of the trustees to run the day to day affairs of the body corporate and instruct the managing agent as needed. By virtue of these duties being performed by a managing agent, there is no need for regular visits to the developments. In these circumstances, it becomes the legal duty of the managing agent to physically monitor the maintenance and repair of work to be done at these developments.
The court found that the incident was caused due to sole negligence. Mr Du Plooy contractually undertook to keep the common property clean. The action instituted by Mr Du Plooy was dismissed.
Sectional Titles Schemes Management Act, 2011
Du Plooy v The Cascades Body Corporate and Another (275/10) (2013) ZAWCHC 62 (12 March 2013)
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