Taking on body corporates in complexes and sectional titles in South Africa – what to do

To take on a body corporate in a complex or sectional title scheme in South Africa, unit owners should follow the correct legal procedures to obtain the necessary information. This involves understanding the relevant laws, such as the Promotion of Access to Information Act (PAIA) and the Sectional Titles Schemes Management Act (STSMA).

Unit owners in sectional title schemes in South Africa face several common pitfalls when trying to access information from their body corporate. These include:

1. Lack of Understanding of Relevant Laws: Unit owners may not be aware of the laws governing access to information from body corporates, such as the Promotion of Access to Information Act (PAIA) and the Sectional Titles Schemes Management Act (STSMA). This lack of understanding can lead to incorrect procedures being followed, resulting in delays or denials of access to the requested information.
2. Incorrect Procedures: Unit owners may not follow the correct procedures for requesting information from their body corporate. This can include not using the appropriate channels, such as the Community Schemes Ombud Service (Ombud), or not providing sufficient details about the requested information.
3. Insufficient Information Provided: Body corporates may not provide sufficient information to unit owners, leading to confusion or frustration. This can be due to a lack of transparency or a failure to provide the necessary details about the requested information.
4. Mismanagement of Funds: Unit owners may suspect mismanagement of funds by the body corporate, which can lead to disputes over access to financial information. In such cases, it is crucial to follow the correct procedures and laws to ensure that the requested information is provided.
5. Inadequate Communication: Poor communication between unit owners and body corporates can lead to misunderstandings and delays in accessing information. It is essential to maintain open and transparent communication channels to resolve any issues efficiently.
6. Lack of Transparency: Body corporates may not provide sufficient transparency about their financial and operational activities, making it difficult for unit owners to assess the management of the scheme. This lack of transparency can lead to mistrust and conflict between the parties.
7. Inadequate Training: Unit owners and body corporate officials may not receive adequate training on the laws and procedures governing access to information. This can lead to misunderstandings and incorrect procedures being followed.
8. Inadequate Resources: Body corporates may not have the necessary resources or personnel to manage the scheme effectively, leading to delays or denials of access to information. Unit owners should ensure that the body corporate has the necessary resources to manage the scheme efficiently.
9. Inadequate Governance: Poor governance structures within the body corporate can lead to mismanagement and a lack of transparency. Unit owners should ensure that the body corporate has a robust governance structure in place.
10. Inadequate Support: Unit owners may not receive adequate support from the body corporate or other authorities when trying to access information. This can lead to frustration and delays in resolving issues.

By being aware of these common pitfalls, unit owners can take steps to ensure that they follow the correct procedures and laws when trying to access information from their body corporate, ultimately leading to a more transparent and effective management of the scheme.

Key Points

1. PAIA vs. STSMA: The choice of law depends on the specific circumstances and the type of information requested. PAIA applies when there is no pre-existing legal relationship between the parties, while STSMA governs requests for information within the context of a sectional title scheme.
2. Requesting Information: Unit owners should approach their attorney to assist in requesting information from the body corporate. This ensures that the correct channels are followed and the necessary legal procedures are adhered to.
3. Scheme Rules: The purpose of the request and the scheme rules are crucial in determining what information should be provided. Owners should be aware of their entitlement to request books of account to assess the body corporate’s financial situation.
4. Limitations: While unit owners have a right to access information, this right is not unlimited. The information requested should be relevant to the purpose of the request and should not exceed what is necessary to assess the body corporate’s financial situation.
5. Legal Action: If the body corporate fails to provide the requested information or mismanages the scheme, unit owners can seek legal action through the Community Schemes Ombud Service (Ombud) or the courts.

Key Laws and Acts

1. Promotion of Access to Information Act (PAIA): This act regulates access to information held by public and private bodies, including body corporates.
2. Sectional Titles Schemes Management Act (STSMA): This act governs the management and regulation of sectional title schemes, including the rights and responsibilities of body corporates and unit owners.

Key Court Ruling

1. Montrose Mews Body Corporate v Moela NO and others: The Gauteng Local Division of the High Court ruled that the provisions of PAIA did not apply to the owner’s request for bank statements from the body corporate. Instead, the request was regulated by the STSMA, and the owner’s entitlement to access information was limited to what was necessary to assess the body corporate’s financial situation.