Trustee in arrears

One of the owners of a complex came to us – wanting to remove the Chairperson as a Trustee. His claim was that the Chairman was in arrears with his levies and therefore should not be a Trustee.

The STSM Act states the following about the disqualification of Trustees (in red the comparison to the previous Act)

PMR 6(4) A trustee ceases to hold office if that trustee—

  • by written notice to the body corporate, resigns from office; same
  • is declared by a court to be of unsound mind; same; but declared by court is new
  • is or becomes insolvent and the insolvency results in the sequestration of that trustee’s estate; same
  • is convicted, or has been convicted in the Republic or elsewhere, of theft, fraud, forgery, perjury or any other offence involving dishonesty; amended to include the bold part
  • is sentenced to imprisonment without the option of a fine; new
  • is removed from an office of trust on account of misconduct in respect of fraud or the misappropriation of money; new
  • is removed from office by ordinary resolution of a general meeting; provided the intention to vote on the proposed removal was specified in the notice convening the meeting; same
  • is or becomes disqualified to hold office as a director of a company in terms of the Companies Act, 2008 (Act No. 71 of 2008); or – same

(i)   fails or refuses to pay the body corporate any amount due by that trustee after a court or adjudicator has given a judgment or order for payment of that amount. (No longer 60 days thing)

So if you look at PMR 6(4)(i) then the person can be a Trustee if they are in arrears with their levies and there is no court order or adjudicator order against them for those arrears.

It is imperative though that the Trustees should set an example for the owners so it is suggested to discuss the matter with the Chairperson and get them to pay the arrear levies asap.

PS – The answer was made on the assumption that the scheme operates on the Prescribed Management Rules of the Act and did not amend their Management Rules