A recent court case has reinforced the fact that the body corporate of a sectional-title scheme is responsible for the maintenance and upkeep of the common property and may be liable for damages if its negligence in this regard results in personal loss or injury.
This means that, if you are an owner of a sectional-title property, you are partly responsible, as a default member of your body corporate, to ensure the scheme as a whole is well maintained and, as a safety measure, that it has liability insurance in place. Although the property management function may be outsourced to an agent, the responsibility for maintenance ultimately lies with the body corporate and its board of trustees.
The “common property” comprises areas and structures in the scheme that are commonly used by the residents and that do not fall within any owner’s sectional-title unit. In the case of a townhouse development, it may include a clubhouse, swimming pool, common sports or play areas, roads and an outer boundary wall. In the case of a block of flats, it would include the outer structure of the building, stairwells, corridors and lifts.
The monthly levy paid by owners to the body corporate primarily covers the maintenance of the common property.
In a case decided by the Western Cape High Court last month (Eze v Adderley Body Corporate and Another), a man successfully sued a body corporate for compensation after part of a wooden ceiling structure fell on him, injuring him.
On March 16, 2016, Stephen Eze, a Nigerian who had lived in South Africa for 11 years, was walking to his uncle’s shop in Adderley Street, Cape Town, when he was struck by falling wood from the ceiling that overhangs the pavement adjoining the Adderley Building. While no-one witnessed the wood falling from the ceiling, the property manager of the Adderley Building, who had arrived on the scene almost immediately, testified that the ceiling had been in a state of disrepair at the time – there was a hole in it, caused by water damage – and the body corporate had been aware of it.
In her judgment, Judge Constance Nziweni said the body corporate had a “duty of care” to keep the building in a clean and safe condition, that it was regularly inspected and maintained, and any defects promptly repaired, and that the public be alerted through warning signs of defects and safety risks, and prevented from walking in dangerous areas.
She said it could not have been a mere accident that falling timber had injured Mr Eze.
“While it is undeniable that there is nothing extraordinary about a person being injured by a fruit falling down from a tree, it is equally undeniable that it is unusual for a person to be injured by an object falling down from the ceiling. Planks do not ordinarily fall from a ceiling if proper care has been taken to see that the ceiling is safe,” the judgement said.
Therefore, it was obvious that, “in the ordinary course of things, the presence of a hole in the ceiling and fall of rotten planks from the same hole do not occur in the absence of negligence”.
The judge ordered the defendants, the Adderley Body Corporate and its managing agent, Permanent Trust Property Management, to pay damages to Mr Eze for the injuries he suffered and his costs of the lawsuit.
In a blog on the case, law firm STBB commented: “This is a wake-up call for trustees to properly deal with their responsibility to keep the buildings in the scheme in good repair. Failure to do so can be found to be negligent and saddle the scheme with unexpected additional expenses.”
PERSONAL FINANCE