Community Scheme Q&A with TVDM Consultants

By Zerlinda van der Merwe
 
1. What are the minimum compliance requirements for a scheme under the PAIA and POPIA?
 
The Information Regulator (previously the South African Human Rights Commission) requires that a PAIA (Promotion of Access to Information Act) manual be prepared and submitted to the Information Regulator. The Community Schemes Ombud Service requires that a POPIA (Protection of Personal Information Act) manual be prepared, and submitted to the members of a body corporate for approval. The Information Regulator further requires the registration of an Information Officer, which is automatically the chairperson of the trustees / directors, but can also be another trustee, an employee or the managing agent, by trustee / board resolution.
 
2. What must be done with the POPIA manual once it has been tabled with the members?
 
Once submitted to the members of a body corporate for approval by means of an ordinary resolution, the POPIA manual must be kept as part of the records of the body corporate and referenced by the Information Officer in application in regard to the personal information of members, occupiers, employees etc.
 
3. If I want to extend my section, must I buy the common property I’m extending my section onto?
 
No, the body corporate cannot sell common property unless it can revert to the land register i.e. no longer form part of the common property, which is not the case in a situation of an extension of a section. The applicant owner may, but is not legally obliged, to offer compensation to the body corporate “in exchange” for the required special resolution of the members, noting that this amount should be fair and reasonable. The owner of the extended section, once registered, will be contributing more to the expenses of the body corporate as a result of their increased participation quota.
 
4. If the body corporate wants to create exclusive use areas, what is the fairest way to allocate these areas?
 
There is no legal answer to this question, but in our consulting department, we often deal with “auctions”, with no set conditions other than those set by the trustees. 
 
5. What can happen if an Annual General Meeting is held late?
 
In a sectional title scheme, a group of owners, representing a minimum of 25% of the total participation quota of the scheme, may, in writing, request an AGM, or an affected owner may make an application to the Community Schemes Ombud Service, but this will not be dealt with on an urgent basis. Other than running late with the financial year and running over with the budget and trustees elected, there is no major impact on the body corporate.
 
6. Do any of the trustees have to be owners?
 
Not in a sectional title scheme. In an HOA, it would be dependent on the wording of the constitution or MOI, which may provide that all trustees must be owners, or a majority of same.
 
7. Do any of the trustees have to live within the scheme?
 
Not in a sectional title scheme again, but it is a possible condition to be contained in an HOA’s constitution or MOI. 
 
8. Can I withhold my levies if I’m unhappy with a decision of my scheme?
 
No, there is no legal basis for withholding payment of your levy contributions in a community scheme, rather follow the internal dispute resolution process that should be described in your body corporate’s rules or HOA’s constitution or MOI, and if unsuccessful, approach the Community Schemes Ombud Service. 
 
9. Can a resolution be passed via Whatsapp?
 
No, a resolution in a body corporate can only be approved by the members at an annual or special general meeting or annual general meeting, or by round robin, a process in writing, which is regulated as meaning email or hard copy written form, as per the Sectional Titles Schemes Management Act. The same will apply in an HOA.
 
10. Must the trustees be registered as property practitioners with the PPRA under the PPA?
 
No, not according to the National Association of Managing Agents (NAMA) that have engaged with the Property Practitioners Regulatory Authority (PPRA).