Disclosure of members contact details
- 22 Dec 2011
The managing agent or executive often suspects that the reason for such a request is that the owner wants to lobby support for a resolution of members, for a complaint about the running of the development or to make some challenge to the authority of the executive body. Consequently, the request is unpopular and often refused, or the information is delayed or only partly provided.
The good news for owners making such a request is that both the prescribed rules under the Sectional Titles Act and the Companies Act – which applies to HOAs constituted as non-profit companies – provide that this information must be made available.
The Sectional Titles Act requires owners to keep the body corporate informed of changes of ownership of the section and the prescribed rules provide that the trustees keep a register of owners showing their service addresses and that other owners must be allowed to inspect this register.
The Companies Act is even more specific and detailed in this regard. Non-profit companies – including all those that were formed under section 21 of the previous Companies Act – must keep a register of members and members must be allowed to inspect the register at no cost and to copy it at no more than a maximum prescribed cost. The records must be made available within a certain period after the request and if the company prevents or delays the inspection or copying, it commits a criminal offence.
This does not mean that all the information regarding owners must be freely given. It is the right of co-owners and members of an association to be able to contact the other owners or members. A postal address is sufficient for this purpose; after all, those members are also entitled to their privacy. The scheme is not obliged to provide an enquiring member with all of the members’ contact details, such as email addresses or home, business and cellphone numbers that they may have made available for their own convenience.
There are interesting parallels in the provisions of the legislation for sectional title schemes and non-profit companies in this context. In a sectional title scheme, only owners, bond holders and the scheme’s managing agent are entitled to see the body corporate’s records; there is no provision for unauthorised outsiders to enjoy this access to scheme information. Any member of the public may inspect and copy the registers of members and directors of a non-profit company, but not other records, such as accounting records, financial statements and minutes of meetings. Both sectional title schemes and non-profit HOA companies are thus protected from outsiders wishing to exploit their sensitive, private information.
Article reference: Paddocks Press: Volume 6, Issue 11, Page 1
Anton Kelly is one of the course conveners of the Home Owners' Association Management course and the UCT (Law@Work) Sectional Title Scheme Management course. For more information please contact Emma on 021 447 7565, email firstname.lastname@example.org or visit www.Paddocks.co.za.
Q&A from Paddocks Club that have been answered by Graham Paddock (www.paddocksclub.co.za)
Topic: Who is liable for insurance excess?
Q1. I have been advised by our managing agents that I am liable for the insurance excess of R1,000 on a damages claim of R1,120 to our bathroom ceiling, which resulted from the roof not being properly maintained and repaired by the body corporate. The managing agent said the person submitting the claim is responsible for the excess due to a recent change in the Act; however, I did not ask the managing agents to submit a claim on my behalf and I did not and have not signed the acceptance of loss form yet as the managing agents never sent it back to me, which they should have in June 2011. I just asked them to fix the damage.
Please advise if I am liable to pay the excess or how I should handle this?
A1. Tell the managing agent that the damage within your section is the direct result of the body corporate's failure to maintain the common property roof. So even if you would be otherwise liable for the excess payment in terms of PMR 29(4), you would have a claim against the body corporate for the amount because your liability to pay it arises from the body corporate's failure to carry out its statutory duty to keep the roof in good repair.
Topic: Owner wants to move kitchen window frame
Q2.1. In the complex I manage, one of the owners is in the process of renovating his entire unit by replacing all tiles and redoing his kitchen and bathrooms (he practically gutted his whole unit). In this process, he has removed the entire kitchen window and intends replacing the same frame but in a different position to be able to fit additional cupboards in the kitchen. Should the trustees allow this? Does LM approval need to be acquired? This change will not affect the complex aesthetically.
A2.1. If this window frame is in the section's boundary wall, as I assume it to be, this proposed alteration involves a change to the common property and this must not be done without the trustees' written consent, as required by PCR 4(1) – click here to see it (link available to members only).
If the trustees do approve it, I suggest that they make very sure that the work to the common property is well done and that the owner is responsible for its quality.
Q2.2. It has now come to light that the intention of the owner is not just to move the position of the window, but to replace the existing window with a much smaller window. Do the trustees have the authority to approve this change to the common property or does this need a special resolution? The window is not really visible as it is enclosed in the garage, which was originally built as a carport, but now the owner wants to enclose it. Does this infringe on any municipal restriction in terms of the original plans?
A2.2. The replacement of a large window with a smaller one, in isolation, is unlikely to require local municipality building survey approval, but perhaps it is best to call and check.
But my reading of your last posting is that this "minor" amendment to the common property is in fact part of the enclosure of a carport, so that it will now be part of the interior living space. This would require amended building plans because carports are not designed to be enclosed.
In addition, if the enclosure of the carport adds to the floor area of the section so that it can, for example, be used as a laundry, storeroom or extended living area, it is a section extension and the owner needs to follow the process in section 24 of the Act, ending up with an amended sectional plan showing the increased area as part of the section.
Please check these aspects.
Professor Graham Paddock is now only available to answer questions on the discussion forum for Community Members of Paddocks Club. Get all your questions answered by joining Graham on this community platform. Join Paddocks Club at www.paddocksclub.co.za.
Editor’s Note: Story written by Anton Kelly