Managing agents' responsibility regarding common property certificates of compliance

The management of sectional title schemes and community housing developments often involves multiple stakeholders, including trustees, owners, and managing agents. Among the many compliance obligations that arise within these schemes, one critical area pertains to the acquisition and maintenance of valid Certificates of Compliance ("COCs") for electrical, plumbing, gas, and other installations on common property. 

 

While owners are typically responsible for COCs within their respective sections, questions often arise around who holds responsibility for ensuring compliance in respect of common property, and specifically, what the managing agent's role entails.

 

The legal position of COCs on common property

 

In terms of the Sectional Titles Schemes Management Act 8 of 2011 ("STSMA") and its regulations, the body corporate is tasked with the control, administration, and management of the common property. This includes an obligation to maintain it in a state of good and serviceable repair. 

 

In turn, the Occupational Health and Safety Act ("OHSA") and other relevant legislation (such as SANS codes and municipal by-laws) require that certain COCs, such as electrical and plumbing compliance certificates, be in place and up to date, particularly when there are changes to installations or when properties are sold.

 

Managing agents as administrative agents, not compliance holders

 

It is crucial to distinguish between legal responsibility and operational delegation. Managing agents are appointed to assist the trustees in executing their functions, including the facilitation of maintenance tasks, record-keeping, liaison with contractors, and general scheme administration. However, managing agents do not become the legal compliance holders by virtue of their appointment. 

 

The body corporate, as a juristic person, remains ultimately responsible for ensuring that the common property installations comply with applicable law.

 

The managing agent's practical responsibilities

 

That said, managing agents play an essential role in ensuring that COC obligations on common property are managed effectively. Their responsibilities typically include:

 

 

● Identifying compliance requirements:

Managing agents should be well-versed in the types of COCs required (electrical, plumbing, gas, elevator, fence energiser, etc.), including when they must be obtained, e.g., following installation work, alterations, or during insurance renewals and property transfers involving exclusive-use areas connected to common property infrastructure.

● Facilitating inspections and appointments:

Agents should coordinate with approved service providers and registered professionals to perform inspections and issue or renew certificates. They must ensure that contractors used are properly accredited and that all certificates are correctly dated and lodged.

 

● Maintaining COC records:

All COCs must be safely stored and updated in the body corporate's records. Managing agents should maintain a COC register as part of scheme documentation, enabling easy access for trustees, auditors, or prospective purchasers requiring compliance verification.

 

● Reporting to trustees:

Agents are expected to alert the trustees of upcoming expiry dates or compliance gaps and to raise budgetary concerns around COC-related maintenance or replacement costs. They should further advise trustees of non-compliance risks that could give rise to liability.

 

● Advising on risk and liability:

Managing agents ought to brief the trustees on the potential consequences of not holding valid COCs, such as insurance invalidation, municipal penalties, or legal liability in the event of injury or damage. While they are not personally liable, they can be held professionally accountable for gross negligence or breach of mandate.

 

Best practice recommendations

● COC calendar and tracking: Implement a digital compliance calendar with automated reminders for periodic inspections and renewals.

● Service provider vetting: Maintain a list of qualified, vetted contractors who are familiar with sectional title environments.

● Clear mandates: Ensure that the managing agent's contract (Management Agreement) expressly includes COC facilitation and tracking duties, to avoid ambiguity and safeguard the trustees.

● Annual trustee reporting: Provide a yearly report to the trustees detailing the current status of all common property compliance certificates.

Conclusion/s - managing agents vital role

 

While the statutory responsibility for common property COCs lies with the body corporate, managing agents have a vital operational role in ensuring that such compliance is upheld in practice. A proactive, informed and systems-based approach by managing agents not only helps schemes remain legally compliant but also safeguards the safety, insurability, and reputational integrity of the development. 

 

Trustees are well advised to ensure that their appointed managing agent has the expertise and administrative processes necessary to support the scheme's compliance infrastructure efficiently.

 

Have any questions? Don't hesitate to contact us today on 061 536 3138 or at info@tvdmconsultants.com for community scheme related advice.

 

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