Advertisement
From security breaches and disputes among residents to allegations of unfair rule enforcement, many of the challenges facing sectional title (ST) trustees can be managed more effectively through careful planning, clear procedures and the support of an experienced managing agent.
That’s the advice of Andrew Schaefer, MD of leading property management company Trafalgar, who says prevention rather than cure should be a fundamental principle of ST governance. The consequences of addressing problems only after they arise can be far greater than the effort required to prevent them.
“Trustees should not have to scramble to find solutions while dealing with a difficult situation. Working with a professional managing agent can help them identify potential risks, establish appropriate procedures and ensure everyone understands their responsibilities when problems occur.”
Security is a good example of where proactive management can make a significant difference, he says. “Trustees have a responsibility to oversee security arrangements and take reasonable steps to manage risks, but their response to an incident can also create unnecessary legal exposure if handled incorrectly.
“If a security breach occurs because a resident, visitor or contractor has failed to follow the scheme’s access procedures, the temptation may be to identify the person publicly and warn other residents. However, sharing personal information without carefully considering privacy and legal requirements can create additional problems.”
A better approach is to establish an incident response plan in advance, setting out how breaches will be investigated, recorded and communicated. Regular security audits, inspections of perimeter fencing and lighting, reviews of access controls and clear procedures for contractors can also help identify vulnerabilities before they are exploited.
“Security should therefore be treated as an ongoing governance responsibility, supported by co-operation and good communication between trustees, residents, managing agents and security professionals.”
Advertisement
And the same preventative principle applies to conduct rules and disputes involving residents who repeatedly disregard them, Schaefer says.
“Trustees who have no established process for dealing with complaints can find themselves debating the appropriate response every time an issue arises, while tensions escalate. Inconsistent decisions can also expose them to accusations of unfair treatment,” says Schaefer.
One of the biggest problems, he notes, is that many schemes still rely on conduct rules drafted years ago that no longer adequately address modern living arrangements or recurring challenges, he notes. Reviewing and updating these rules is therefore an important governance exercise, rather than something to consider only when a serious dispute arises.
“Legal advice to modernise a scheme’s conduct rules will generally cost in the region of R8000, depending on the complexity of the review. Approved amendments will then need to be registered with the Community Schemes Ombud Service (CSOS) and a registration certificate obtained to ensure enforceability.
“Clear, current and enforceable conduct rules, supported by documented procedures for investigating complaints and addressing contraventions, give trustees a sound basis for responding promptly and fairly.”
Schaefer also says trustees need to be more decisive when dealing with recurring contraventions. Allowing the same problem to continue without a clear response can undermine the authority of the rules and frustrate those residents who do comply..
“Trustees should establish a consistent escalation process, including written warnings and clear communication of the consequences of further contraventions. Where an issue persists, they should be prepared to recognise when it has become a dispute requiring formal intervention, rather than allowing it to continue indefinitely.
“A second written warning can be an appropriate point to make it clear that the scheme is compiling evidence and that any further recurrence may result in an application to CSOS for a binding order,” he says.
Maintaining a portfolio of evidence is important before escalating a matter. This should include complaints, correspondence, written warnings, relevant photographs or other supporting documentation, and records of the steps taken to resolve the issue internally. Such evidence helps demonstrate that reasonable internal remedies have been attempted but have failed.
In addition, Schaefer says, trustees must ensure that decisions are properly documented. “Resolutions taken at trustee meetings should be recorded in the minutes, or formalised through a written trustees’ resolution where appropriate. This provides a clear record of the decision, the reasoning behind it and the action required, helping to ensure consistent implementation and accountability.”
There is of course no universal solution, because every sectional title scheme has its own dynamics, risks and challenges. So the key is to anticipate what could go wrong, put sensible measures in place and ensure trustees have the guidance they need to respond correctly when issues arise, he says.
“Consequently, conduct rules and governance procedures should continue to be reviewed regularly to ensure they remain practical, relevant and compliant with applicable legislation and CSOS requirements. And an experienced managing agent can provide invaluable help to trustees by identifying gaps in their rules and procedures, co-ordinating specialist legal advice where necessary, maintaining appropriate records and ensuring that decisions are implemented consistently.”
Ultimately, effective ST management is about more than resolving problems. It is about building the systems, relationships and sound governance practices that make problems less likely to occur in the first place.
“And with the right professional support, trustees can reduce those avoidable risks, protect the interests of owners and foster safer, more harmonious communities.”
