When one has a look at security and the provisions of the Sectional Titles Act and Regulations thereunder, one realises that there are not many and/or specific statutory provisions concerning security in a Sectional Title Community.
A Body Corporate, therefore the members of a Sectional Title Scheme, exercise the rights, functions and obligations as imposed in terms of the Act, through the Trustees, duly elected from time to time.
The functions of Body Corporates are dictated or regulated in terms of the provisions of Section 37 of the Act and which functions inter alia includes the obligation on a Body Corporate, through its Trustees, to inter alia maintain common property and in general control, manage and administer the common property for the benefit of all owners. None of the provisions of Section 37 specifically place an obligation on a Body Corporate to implement any form of security.
The powers of Body Corporates are dealt with in Section 38 of the Act and such powers include the authorisation:
(a) to appoint such agents and employees as it may deem fit; and
(c) to purchase, hire or otherwise acquire movable property for the use of owners for their enjoyment or protection, or in connection with the enjoyment or protection of the common property; and
(e) to borrow monies required by it in the performance of its functions or the exercise of its powers; and
(f) to secure the re-payment of monies borrowed by it and the payment of interest thereon, by negotiable instrument or the hypothecation of unpaid contributions (whether levied or not) or by mortgaging any property vested in it; and
(h) to enter into an Agreement with the Local Authority or any other person or Body for the supply to the building or buildings and the land of electric current, gas, water, fuel and sanitary and other services; and
(j) to do all things reasonably necessary for the enforcement of the Rules and for the control, management and administration of the common property.
Section 44 of the Act deals with the duties of owners and there are no specific provisions dealing with the obligation of an owner to implement any security measures. However, provision is made that the Body Corporate or person or persons authorised by the Body Corporate can enter a Section or exclusive use area for inspection purposes and/or repairs and therefore, if any security devices or any wiring connected thereto is affixed or in the event of wiring running through a Section or an exclusive use area, the Trustees will be entitled to attend to the necessary inspection and/or service of such devices.
There are various provisions in the Act imposing obligations on the Trustees to insure the common property and its amenities, but no specific provision compelling them to implement any security measures.
In terms of Prescribed Conduct Rule 4 (Annexure 9), an owner or person authorised through the owner, may install a locking device, safety gate, burglar bars or other safety device for the protection of his Section (Conduct Rule 4(2)(a)), provided that the Trustees have first approved in writing the nature and design of the device and the manner of its installation.
If an owner installs any security devices for the protection of his Section, he will, himself, be liable for the cost thereof and the maintenance and upkeep thereof.
The Trustees, although authorised in terms of Section 38 to acquire safety devices (movable property for the protection of the common property), they will have to comply with the provisions of Management Rule 33(2)(a) that deals with non-luxurious improvements to common property.
In terms of Prescribed Management Rule 33(2)(a) (Annexure 8), the Trustees, whenever they wish to effect any improvements to common property, other than luxurious improvements referred to in sub-rule (1), they shall first give written notice of such intention to all owners and such notice shall:-
1. indicate the intention of the Trustees to proceed with the improvement upon the expiry of a period of not less than 30 (thirty) days, reckoned from the date of posting such notice; and
2. provide details of the improvement as to:
2.1 the cost thereof;
2.2 the manner in which it is to be financed and the effect upon levies paid by owners; and
2.3 the need, the desirability and effect thereof.
There is often much debate as to whether a security device or security system constitutes a luxurious or non-luxurious improvement.
Some Trustees would argue that electrification of a perimeter wall or palisade fence with electric fencing constitutes a luxurious improvement and opposed to that, razor blade fencing would be a non-luxurious improvement. Some would argue that to have fingerprint access control systems installed would be a luxurious improvement whereas a normal token or tag operating system is regarded as non-luxurious.
Although in terms of our law, this test as to what constitutes luxurious and non-luxurious, is an objective test, I am of the opinion that this test when applied in the Sectional Title Fraternity, should be subjective. If members in a specific community by majority are prepared to spend hundreds of thousands of Rands on security, they should be able to do so. As an example, for a complex in an up-market suburb, a swimming pool would not necessarily be luxurious, but a necessity, whereas in a less privileged area, a swimming pool will definitely be a luxurious improvement and not a necessity.
Given the crime situation in our Country, I am of the opinion, that when applying the objective test, that any security system, whether expensive or not, is necessary for the protection of common property and should be regarded as a non-luxurious improvement.
Consequently it is my view that, with regard to installation of security devices, such as electric fencing, alarm systems, etc., the Trustees should follow the provisions of Management Rule 33(2) and therefore deal with such security measures as if it is a non-luxurious improvement and its installation is a necessity.
When the Trustees wish to employ the services of a Security Company, for example guarded access control to the common property, they can simply proceed without any permission from the members. The members in General Meeting can however direct the Trustees to terminate such service or to implement or upgrade such service (Section 39).
The Trustees can also borrow monies for the fulfilment of their duties and although there is no specific requirement for members’ consent, it is advisable that the Trustees seek the support or recommendation of their members before borrowing monies. Body Corporate funding is expensive and prudent trustees would only arrange finance for unforeseen or major projects. Luxurious and non-luxurious improvements must be budgeted for in advance and for which purpose special levies can be raised.
Trustees stand in a fiduciary relationship to the Body Corporate. This fiduciary relationship implies that the Trustees act honestly and in good faith in relation to the Body Corporate, that they shall exercise such powers as they have to manage or represent the Body Corporate in the interest and for the benefit of the Body Corporate, they shall not act without or exceed such powers, they shall avoid any material conflict between their own interests and that of the Body Corporate and they shall not derive any personal economic benefit.
One can expect from Trustees, as part of this fiduciary relationship, to advise members on security issues and to implement adequate security measures for the protection of common property.
The members are entitled, in terms of the provisions of Section 39 of the Act, to impose restrictions or give directions to the Trustees at a General Meeting. In my view, members can therefore never say that the Trustees should have timeously implemented security measures if the members themselves have failed to give such directions in General Meeting.
Article by Izak du Pisanie
EY Stuart Attorneys – Pretoria