The Hidden Liability Time Bomb - When Trustees Inherit Decades of Deferred Maintenance
- Björn Laubscher
- Oct 15
- 4 min read
The new trustees took office in March. By June, three balconies were declared structurally unsafe. By September, they were facing a R4.2 million special levy and potential personal liability claims. Their crime? Inheriting thirty years of documented-but-ignored defects.
The Normalisation of Decay
There's a psychological phenomenon plaguing South African sectional title schemes: the gradual acceptance of deterioration. It starts innocuously, a crack in the façade is noted in the AGM minutes but deemed "non-urgent." The following year, it's mentioned again, slightly larger. By year five, it's simply part of the building's character. Owners walk past it daily without seeing it anymore.
Until the day a section of that façade collapses into the parking area.
This isn't hypothetical. In 2024, a Cape Town scheme faced exactly this scenario. The subsequent forensic investigation uncovered AGM minutes dating back seventeen years documenting "cosmetic cracking." The structural engineer's report was damning: the cracks were symptomatic of serious structural movement that had been visible, and documented for nearly two decades.
The Handover Crisis
South African sectional title legislation requires outgoing trustees to hand over all financial records and documentation. What it doesn't require but desperately needs is a comprehensive condition audit at each trustee transition.
New trustees typically receive:
Bank statements and financial reports
Insurance policies and service contracts
A stack of previous AGM minutes they'll never fully read
The intercom manual and access to the system to update new residents
What they rarely receive:
A frank assessment of deferred maintenance
Prioritised lists of known defects
Engineering reports buried in email archives
The unspoken agreement that "we just manage around that problem"
This information asymmetry creates a liability trap. The Sectional Titles Schemes Management Act holds current trustees responsible for maintaining common property in good repair. Courts have increasingly rejected the defense of "we didn't know", especially when minutes from previous AGMs documented the very issues that later caused damage.
The Johannesburg Precedent
In a 2023 Gauteng case, former trustees were pursued for contribution to a R2.8 million repair bill after waterproofing failure caused extensive damage. The plaintiffs argued that minutes from 2018 onwards documented persistent leaks that were "monitored" but never properly addressed. The court found that passive monitoring of a known defect, without taking reasonable steps toward remedy, constituted a breach of fiduciary duty.
The judgment sent shockwaves through body corporate administrators. It established that:
Documentation of a problem doesn't absolve trustees of responsibility to act
Budget constraints are not automatic defenses against claims of negligence
Trustees can be personally liable for damages resulting from foreseeable consequences of inaction
The Forensic Maintenance Audit
Forward-thinking schemes are now implementing "trustee transition audits", independent assessments conducted when new trustees take office. These audits serve two purposes:
Protection for incoming trustees: A comprehensive record of the building's actual condition at the moment they assume responsibility. If serious defects exist, they're documented and acknowledged, shifting the timeline of responsibility.
Accountability for outgoing trustees: A forcing mechanism that prevents the "kick the can" mentality. When trustees know their tenure will end with a professional audit, the motivation to properly address issues increases significantly.
A typical forensic maintenance audit costs R10 000 - R45 000
for a medium-sized complex, expensive, but trivial compared to the potential liability exposure. These audits examine:
Structural elements and their condition trajectory
Building envelope integrity (waterproofing, facades)
Mechanical and electrical systems
Compliance with safety regulations and building codes
Cross-referencing of historical maintenance records against visible conditions
The "Urgent" vs "Critical" Deception
Many schemes operate with a false distinction between urgent and critical maintenance. Trustees defer "urgent" items because they're not yet "critical." This creates a perverse incentive structure where problems must become crises before they're addressed.
The reality? Most critical failures begin as urgent repairs. The R500,000 structural remediation started as a R45,000 waterproofing repair. The R2 million façade replacement began as a R150,000 crack repair programme.
What Incoming Trustees Must Do
Within 30 days of taking office:
Commission an independent building condition assessment
Review ALL reports and specialist assessments from the past 10 years
Create a "known defects register" from AGM minutes
Obtain professional opinions on any items repeatedly mentioned but not actioned
Present findings to owners with costings for both immediate and deferred action
Document everything. Every decision to defer maintenance should be recorded with:
The reason for deferral
The assessed risk of deferral
The projected cost increase of delay
The planned timeline for addressing the issue
The Uncomfortable Truth
South African schemes are aging. Buildings constructed in the 1980s and 1990s are reaching the point where major building envelope and structural systems require replacement, not just repair. Many of these schemes have levies that haven't kept pace with actual maintenance needs, creating a growing gap between required and available funds.
New trustees stepping into this environment face an impossible choice: impose massive special levies that owners can't afford, or continue the cycle of deferral and hope the crisis doesn't occur during their tenure.
The liability time bomb isn't ticking in isolated schemes, it's industry-wide. The trustees who will successfully navigate this era are those who commission comprehensive condition assessments, communicate honestly with owners about the true state of their buildings, and document every decision with professional guidance.
The age of plausible deniability is over. In the connected, documented world of 2025, ignorance is no longer a defense, it's evidence of negligence.
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