LEVIES FOR BALCONY MAINTENANCE: WHOSE RESPONSIBILITY?
Baxter v Ocean View Body Corporate and Others (A170/2022) [2022] ZAWCHC 234 (16 November 2022)
We know that in sectional title schemes the trustees raise levies to apply towards, amongst other things, the maintenance of the common property in the scheme. Where (some) owners have rights to the exclusive use of parts of the common property, their levies will reflect and additional amount in respect thereof. Although this arrangement is common, one must be wary that the rules of a scheme may determine otherwise and provide that an owner enjoying such rights must herself take responsibility for the maintenance of that exclusive use area. This makes particular sense if the exclusive use area is a balcony that only the owner uses. And in such event, the body corporate must ensure that the determination of such owner’s levy liability, reflects the fact that she is responsible for the maintenance, as this judgment shows.
The Judgment
Summary of the Judgment
DOES A TRUSTEE’S FIDUCIARY DUTY TO THE TRUST PROHIBIT THE PURCHASE OF A TRUST ASSET?
Kuttel v Master of the High Court and Others (819/2021) [2022] ZASCA 156 (16 November 2022)
A transaction in which one’s interest and duty conflict is generally not countenanced by the law. Thus, when a person in a fiduciary relationship purchases property in respect of which that relationship applies – e.g. when an executor of a deceased estate purchases property from the estate or when a trustee purchases property from the trust that he administers – conflict presents. What has crystallized from case law is that such transactions can, in exceptional circumstances, proceed if safeguards are in place, such as that a co-executor or co-trustee consents to the transaction which is otherwise bona fide and at arm’s length. Where immovable property is involved, the court’s oversight must be obtained in addition.
This conflict was debated in this matter, where a trust beneficiary attacked the acquisition of share assets of the trust, by two trustees. The attack was unsuccessful because, firstly, the sale of shares (as opposed to the sale of immovable property) did not require a court’s consent, and secondly, because the trustees acted with transparency, with consent of other co-trustees and in good faith in an arm’s length transaction.
The judgment provides practical insight into how such transactions must be approached, in order to allow for the exception from the general prohibition.
