29 Jul Who is responsible for security in a sectional title scheme or HOA?
One of the many reasons a sectional title complex or estate is so attractive to property owners is the sense of security it provides. What happens when your apartment or house is broken into, who is responsible for your loss? Is it the body corporate, the estate manager, the security company or the managing agent?
Responsibility to secure
In a sectional title scheme, the owner is responsible for the inside of their unit up until the middle of the wall. The body corporate is then responsible for the areas outside the units up until the middle of the wall from the outside, i.e. the body corporate looks after the outside of the unit and the owner looks after the inside.
The owner has the right to secure their section by installing burglar bars and security gates. An owner may also choose to install a security alarm system that is linked to an armed response company. In an estate, the owner owns the house and can secure the house by installing security gates, burglar bars and alarm systems. In both cases, the owner needs to take any necessary security measures as the body corporate or the homeowners’ association (HOA) is not responsible for it.
The responsibility of the body corporate and HOA is to manage and maintain the common property in a scheme. Therefore, the body corporate – in addition to a security fence or boundary wall – further needs to secure the complex with a suitable security system or employ a security company. Examples of security systems are electrical fences, CCTV cameras and access control gates.
An estate generally has most of these features already in place when developed.
In the event a body corporate or HOA employs a security company, the contract of appointment will stipulate what services the security company will provide as well as any exclusions the security company cannot be held liable for.
Maintaining security measures
Both bodies corporate and HOAs are responsible for the maintenance of the common property including all fixtures and fittings that form part of the common property. For this reason, the body corporate or HOA is expected to maintain the security equipment and fixtures such as electric fences and access control systems.
Where owners have installed burglar bars, security gates or security systems in their units or houses, it is their responsibility to maintain these fixtures and devices; the body corporate or HOA is not responsible for this.
The role of the trustees/directors and managing agent
Trustees and directors of bodies corporate and HOAs are appointed to manage the affairs of the schemes. In return, they may appoint a managing agent to assist them in their functions and duties. The appointment of a managing agent is contractual of nature; it is not a way for trustees or directors can avoid their responsibilities.
The trustees or directors must ensure regular maintenance of the common property as well as the fixtures and fittings. The role of the managing agent is to assist the trustees and directors with their responsibility.
Who is responsible in the case of a burglary?
The Sectional Titles Act (STA) and Sectional Titles Schemes Management Act (STSMA) place no responsibility on the body corporate to ensure sufficient security measures, nor does it hold the trustees responsible for these actions.
HOAs are governed by their memorandum of incorporation (MOI) which may vary from estate to estate. It may be possible that a MOI places limited responsibility on directors to ensure the safety of residents in the estate.
In a recent court case, Van der Bijl and Another vs Featherbrooke Estate Home Owners Association, the judge ruled against an owner in an estate who wanted compensation from the HOA when their house was burgled. The judge ruled that there was no agreement between the HOA and the owners stating that the HOA had a duty to protect and safeguard personal property of owners.
Conclusion
Potential owners in schemes like bodies corporate and HOAs should – as part of their due diligence of the complex – note the security measures installed in the complex as well as the unit or house they want to buy. Once they have invested in the scheme and they want to address insufficient security measures on the common property, they should raise their concerns with the trustees or directors.