“Owners are increasingly taking trustees to court for negligence, fraud or simply poor performance,” he adds.

“Although almost all residential trustees are part-time, its no longer a job to take light, with all the fiduciary duties of a board of directors. Its not a simple task and they can’t get paid for the job unless 80% of the owners at a special general meeting agree to it.”

Growing activism by owners is forcing trustees to better understand their duties in terms of the Sectional Title Act. A trustee committee should assign one trustee to take responsibility for compliance and keep up to date amendments to the act, says Schaefer.

“But perhaps the most effective strategy for trustees is to communicate well and openly with owners, inviting them to trustee meetings and keep them informed through a newsletter. This is the best way to establish trust. Admit errors when they occur and get sympathy rather than the fury that usually follows its discovery later.”

Trustees are elected at each annual general meeting. They do not have to be owners in the body corporate if the majority are owners, or spouses of owners. At the first meeting held by the trustees, a chairman is elected and he or she will hold office until the conclusion of the next annual general meeting.

In terms of the management rules, Trustees are responsible for the management and control of the common property, ensuring the buildings are adequately insured, collecting the levies, controlling the finances, appointing a managing agent and enforcing the rules. The rules may not be amended by the trustees, only enforced. The trustees must ensure the smooth running of the scheme. Owners are given the opportunity at each annual general meeting to place specific directions or restrictions on the elected trustees, provided this is not in contravention of the Sectional Title Act or the rules in place.

Trustees can convene a meeting at any time by giving not less than seven days written notice, at these meetings all trustees are entitled to speak and vote. Owners are entitled to attend but do not hold a vote. It is recommended that trustees divide the workload by allocating portfolios to each trustee. This helps to avoid the situation, which often occurs, where an individual is found to be performing all the duties. For example, Mr. X could be entrusted the insurance portfolio and Mr. Y, the maintenance.

Trustees must know the consequences surrounding their control and management of the scheme, adds Schaefer. If a trustee is found guilty of gross negligence, he or she can be held personally liable for the financial damages. The management rules state that every trustee is indemnified by the body corporate against all costs, losses and claims incurred unless incurred by the gross negligence of that trustee.

Trustees are very often on the receiving end of much abuse and criticism from owners who do not fully understand where a trustee’s duty begins and ends, remembering that owners themselves have duties in terms of the Act and management rules.

It is encouraging to see that a lot of emphasis has recently been placed on the topic of Trustee’s responsibilities and the educating of trustees as well as other role players in sectional title. This can only lead to healthier bodies corporate and happier owners says Schaefer.