By Fausto Di Palma
Director, Sectional Title Solutions (Pty) Ltd
Fausto graduated from Rhodes University with a BCom LLB in 2011. After graduation, he spent the first years of his career as a lecturer on Commercial Law. Between 2012 and 2014, Fausto completed his articles of clerkship at Moodie & Robertson Attorneys, where his primary practice areas were debt collection and civil litigation in general but more specifically local government law and property law, including Sectional Title law. In June 2015, Fausto joined Sectional Title Solutions (Pty) Ltd and established a highly systemised and functional legal department to monitor Community Scheme loans and levy collections with the legal team he manages.
Fausto is an active member of the National Association of Managing Agents (NAMA) Regional Committee where he participates in monthly seminars and conferences, including training in sectional title law and scheme governance.
Fausto recently presented at the 2019 National Association of Managing Agents (NAMA) conference, where he spoke about various Sectional Title Scheme resolutions, the appointment of executive managing agents, deviations by developers from the original approved Site Development Plan as well as the cession of developer’s right to extend a Sectional Title Scheme. Some extracts from Fausto’s presentation are mentioned below.
• When looking at Sectional Title Scheme resolutions, it is important to remember that there are various types, each with its own rules and regulations. Understanding when a unanimous, special, ordinary or trustee resolution needs to take place is vital to scheme governance.
• A Managing Agent is appointed by an ordinary resolution of the Body Corporate and an Executive Managing Agent is appointed by special resolution of the Body Corporate. The trustees do not exist where an Executive Managing Agent has been appointed, and the Executive Managing Agent has a fiduciary responsibility to each member of the Body Corporate. Furthermore, the Executive Managing Agent can be held personally liable for loss suffered by the Body Corporate if they flout their duty of care and skill.
• Issues concerning developers may be experienced in the Sectional Title Scheme and it helps if you know certain technical areas of the development of a Sectional Title Scheme so that these issues can be resolved.
• Site development plans are a crucial part of site planning for developers. They show details of the proposed development on the land in question from landscape features and structures to flood lines, open areas, barriers and existing or proposed servitudes. They are submitted to the local municipality for approval before the developer can commence with the erection of any structures on the demarcated site.
• The architects, land surveyor, engineer, and town planning professional must coordinate and ensure compliance with the applicable regulations as set out by the local authority. All plans must be approved by all relevant parties prior to being sent to the municipality. A building plan will only be approved if it is in accordance with the development proposals of the site development plan submitted. The municipality at its own discretion may, however, approve a building plan that deviates from the site development plan proposal if such deviations are for good reason and properly motivated. This depends on the extent and effect of the deviation and the relevant municipality’s powers.
• The primary purpose of the building plan is to show the detail of the site and the buildings, while the primary purpose of the sectional plan is to show how the property is divided into sections and common property.
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