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Thursday Jul 09, 2020

FAQs by homeowners' associations and body corporates

The Community Schemes Ombud Services (CSOS) recently published answers to many frequently answered questions.

Herewith some interesting excerpts:

Does a chairperson have more powers than the rest of the Trustees?

Only in the instance where there is an equal number of trustees and at a Trustee meeting there is a tied vote (e.g. There are 6 Trustees including the Chairperson, 3 votes in favour of a proposed motion and 3 vote against), then the Chairperson has what is known as a "casting" or deciding vote.

However, if there are only 2 Trustees, the Chairperson does not have a casting vote, since the Trustees can only act to co- opt further Trustees or to call a meeting to elect Trustees. The chairperson, therefore, has no more powers than the rest of the trustees. Please see prescribed management rule 14 of the Sectional Titles Schemes Management Act.

What is the Managing Agents responsibility towards unit-owners?

A Service Level Agreement or management agreement is signed between the Agent and the client (being the community scheme), which sets out the duties and responsibilities of the Agent. There is no legislation which deals with the specific duties and responsibilities of an Agent. If the Managing Agent is a registered Estate Agent, then he/it falls under the rules and regulations of the Estate Agency Affairs Board and the Property Practitioners Act."

Can the Trustees lodge an application for dispute resolution with the CSOS if the summons has already been issued against a levy defaulter?

Section 42 of the CSOS Act states that an Ombud must reject an application if a summons has already been issued against a levy defaulter for the recovery of levies.

When a potential Applicant (i.e. the body corporate in this instance) approaches the CSOS to institute dispute resolution proceedings against a levy defaulter for the collection of outstanding levies, we advise the Trustees to first withdraw legal proceedings against the recalcitrant unit-owner, and then hand the matter over to the CSOS.

If the Trustees refuse, then the CSOS cannot take the matter on. The reason for this is that action against a Defendant/Respondent cannot be taken in different forums.

The person instituting the action must choose the legal forum in which the legal action is instituted against the Defendant /Respondent and stick to that forum. You have the right to choose either the Court or the CSOS as the legal forum in which to institute and pursue the action, but not both. This is a fundamental principle of the South African Law.

May I install CCTV cameras outside my unit for protection?

Yes, you may, however you need to obtain the Trustees permission and you may not invade anybody else's privacy in the scheme."

Can an owner vote at a General Meeting if there is a judgment or adjudication order against him?

No, he cannot vote at an AGM or SGM for an ordinary resolution, however, the PQ can be counted towards the quorum. The owner can vote for a special or unanimous resolution even if there is a judgment or adjudication order against him.

Must an owner first waive a meeting before a SKYPE / ZOOM / MICROSOFT TEAMS meeting can take place?

Holding an AGM via skype or any other electronic media does not mean that any member of the body corporate needs to waive the right to hold the meeting, it simply means that the meeting is held by utilising of electronic media as long as, in terms of prescribed management rule 10:

A body corporate may make arrangements for attendance at an annual or special general meeting by telephone or any other method, if the method—

• is accessible to all members and other persons entitled to attend the meeting;
• permits all persons participating in the meeting to communicate with each other during the meeting; and
• permits the chairperson to confirm, with reasonable certainty, the identity of the participants.

It is only if no meeting whatsoever is going to be held, that all members must waive the right to the meeting.

Annetjie Coetsee
STBB The Big Small Firm


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