MONDAY JUN 13, 2016
Court tells body corporate to fix lifts
Bodies corporate have a duty to maintain property and keep machinery, including lifts, in a good state of repair, a Western Cape High Court judge said in a recent judgment which is of significance to flat owners and tenants. Click here to read the justment
The apartment complex in Zonnebloem.
The court found there was gross incompetence in the management of an apartment complex in Zonnebloem, where lifts servicing the complex’s six buildings remained out of order for two years.
This, the court found, made the upper floors of buildings inaccessible to elderly residents and visitors, as well as those who were disabled.
“They constitute the most vulnerable in our society and the inoperable elevators serve to create an unsustainable, undignified and intolerable situation for them,” Acting Judge Ashraf Mahomed said.
He granted a punitive costs order against the complex’s body corporate.
The judgment was handed down in an urgent application brought by flat owner Malcolm Lyons, 82, against the body corporate of the Skyways sectional title scheme.
Lyons, an attorney, submitted in his application the dormancy of the lifts created an untenable situation in which elderly residents, owners and visitors, as well as those with disabilities, were forced to climb flights of stairs with great difficulty in order to access other floors in the fourstorey high building.
In December 2013 the body corporate’s trustees had adopted a resolution to have the lifts repaired.
But the service provider it had contracted for the repairs failed to carry out the job, leading it to terminate the contract in November 2014 – nearly a year later.
A second company was contracted but by February this year only one of the lifts had been repaired.
Eventually, Lyons decided to take on the body corporate, lodging the urgent application in which he sought an interdict compelling them to ensure all lifts were in working order.
And his efforts were not in vain.
Acting Judge Mahomed said he looked at the steps the body corporate had taken since the issue of the elevators was first brought to its attention.
“While I accept that the (body corporate) was not sitting completely idle at all times and that it was dealing with problematic service providers, there were no substantive reasons offered for the respondent’s own dilatory conduct at crucial times when a reasonable intervention was required.
“In particular, no adequate reasons were provided for its failure to properly implement the trustee’s resolutions within a reasonable period of time.
“The inescapable conclusion is that there was gross incompetence in the management and implementation of the resolutions adopted by the respondent’s trustees.
“In the result, the steps taken by the respondent through its managing agent were wholly inadequate, resulting in unreasonable delays in repairing or replacing the elevators in the buildings.”
The judge said the owners of the units were entitled to expect the body corporate to maintain the lifts and keep them in a state of good and serviceable repair.
Acting Judge Mahomed was also not prepared to leave it to the body corporate to deal with the matter internally, saying that “it was reasonably conceivable that internal remedies would result in further delays”.
He granted a final interdict and ordered the Skyways body corporate to take steps to ensure the lifts were fully operational within three months.
Commenting on the judgment, Lyons’s attorney Tzvi Brivik said the court made several poignant observations in the judgment about the duty and general obligations of a body corporate.
He added: “Despite the intricate and advanced legislation which is in place to protect the elderly and the disabled, this class of what constitutes the vulnerable in our society are still unduly discriminated against.”
Brivik also pointed out that the conduct of the trustees forced the owners to approach the court for relief and said the court showed its displeasure in their “lackadaisical approach” by making a punitive costs order against them.
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