“I live in a sectional title that used to have beautiful common property areas. The last year or two though, owners have been causing damage to these garden areas and walkways and the body corporate is doing nothing to stop it. Can I take legal action against the owners that are causing the damage or can only the body corporate do something?”
From the Sectional Title Schemes Management Act (“STSMA”) it is clear that the body corporate of a sectional title scheme is the entity responsible for the enforcement of the rules, the control, administration and management of the scheme and the common property for the benefit of all the owners in such scheme.
The STSMA states that the body corporate has the capacity to sue for any damage to the common property or in respect of any matter in connection with the land or building for which the body corporate is liable or for which the owners are jointly liable.
But, if the body corporate does nothing, can an owner then institute action on behalf of the body corporate?
This point arose in a recent Constitutional Court case where the Court had to consider when an owner may institute action on behalf of a body corporate. Although the case refers to the sections of the repealed Sectional Titles Act 95 of 1986, the relevant principles and wording can be applied to section 9 of the STSMA.
Section 9 of the STSMA makes provision for the instances when an owner may institute action on behalf of the body corporate as well as the steps to be taken. Should an owner be of the opinion that he or the body corporate is suffering damages or loss in terms of the abovementioned instances where the body corporate may sue and the body corporate has not instituted any action to recover the damages or enforce the rules, then such an owner must first serve the body corporate with a written notice demanding that the body corporate institute action within one month from date of service of the letter.
Should the body corporate fail to take the necessary steps within one month, then the owner may apply to the court for the appointment of a curator ad litem for the body corporate for the purpose of instituting action on behalf of the body corporate. The court will request an investigation into the matter by the curator ad litem and if the court is satisfied with the investigation, the court will confirm the appointment of the curator ad litem and order him to proceed with instituting action on behalf of the body corporate.
The Constitutional Court looked at the wording of Section 9 and whether it was an infringement of an individual owner in the scheme’s constitutional right to freely institute legal action in a court of law. The court concluded that Section 9 is a justified limitation on such owner’s constitutional right to institute legal action in a court of law and that Section 9 is to protect the body corporate against unnecessary claims on its behalf, which are without merit.
What this means is that an individual owner can institute action on behalf of the body corporate, but will have to comply with the provisions of section 9 of the STSMA and will have to follow the correct notice procedures and applications.
Given the above, it would therefore be wise to discuss any proposed course of legal action with your attorney first and consider approaching your body corporate formally with a complaint before embarking on legal action.
Author: Tonkin Clacey Inc Attorneys