Yes, you could be appointed as an alternate trustee or you could be appointed to serve on a sub-committee for a purpose, such as legal and governance or finance, or a sub-committee set up for a specific project within your scheme.

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.

Not in a sectional title scheme again, but it is a possible condition to be contained in an HOA’s constitution or MOI.

Yes, both a BC and HOA must be registered. Section 10(1)(e) exempts from income tax the levy income of a body corporate, a share block company and an association of persons. It also provides for an exemption for these entities any receipts and accruals, other than levies, up to R50 000 (fifty thousand rand) is exempt from income tax.

Not for review and approval as is the case with body corporate amended management and conduct rules. The CSOS do, if you choose, quality assure HOA governance documentation.

No, unless the constitution or memorandum of incorporation require it. The term reserve fund, and maintenance, repair and replacement plan, are statutory requirements, under the Sectional Titles Schemes Management Act, for bodies corporate, and are not applicable to HOA’s.

All owners will need to consent, in writing, to any amendment, which we suggest is the insertion of an amendment clause. It is usual in Common Law Associations that a constitution can be amended by seventy-five percent (75%) of a quorum, which differs depending on the scheme, and the number of members.

Unlike a levy clearance certificate in a sectional title scheme, a clearance certificate, depending on the provision/s of the HOA’s constitution or memorandum of incorporation, can be withheld should an owner (seller) not have complied with any rule or directive of the HOA’s management, and should such a person be in arrears with their levies and other charges.

Yes, if the trustees or directors incur costs due to the conduct of a member, such as legal fees, these costs can be recovered from the member’s levy account, and no agreement or Order is required as it is in sectional title schemes.

No, there is currently no requirement that a community scheme, other than a sectional title scheme, submit its amended rules to the CSOS. The CSOS do “quality assure” HOA rules if the trustees or directors, or members, wish that the CSOS review same, but the suggestions of the CSOS are not binding as they are with bodies corporate.

Normally, the boundary wall of the HOA is part of the common area of the HOA, and therefore the responsibility of the HOA. It is possible for parts of the boundary wall to be the responsibility of an owner of an erf within the HOA, or shared between owners in an HOA. A boundary wall could even be shared between the HOA and a neighbouring erf.

Resolutions (above) are made at trustee or annual / special general meetings or in writing by round robin resolution. 

Quick answer, yes. Any document that is going to be “considered” or “voted on” by a member, present in person or represented by proxy, at an annual or special general meeting, must be provided to all owners, who have not waived their right to receive notice, within time before the meeting, and in the correct format. If a document is late or not circulated, it may invalidate a vote taken at a general meeting, unless the trustees can provide evidence that a reasonable attempt had been made to provide proper notice. Rather call the meeting a bit later than circulate the notice without all the relevant documentation.

Should a trustee resign or be removed from office, there will be a vacancy in the number of trustees, as determined by the members at the last annual general meeting. Although a body corporate can have a minimum of two (2) trustees, it is important to maintain a quorum of a majority of the determined number in order to make valid decisions, and exercise and perform the body corporate’s powers and functions. If only one (1) trustee is left, this person can only call a special general meeting to replace trustees to the number determined, or at least, to a quorum. In a similar way, the remaining trustees can replace a trustee/s, by majority trustee resolution. We sometimes call this “co-opting a trustee”. Such trustee/s will have all the authority of the replaced trustee until removed from office, their resignation, death or the next annual general meeting. There are no requirements as to who this person must be, other than qualify to be a trustee, and this person does not need  to be appointed by the members, but it will be good to notify the owners of the appointment.

The trustees, by majority trustee resolution, decide on whether or not interest will be raised on arrear payments to the scheme by owners. This resolution must be updated annually when the contribution to be levied is resolved, by the trustees, following the member’s approval of the budget at the annual general meeting. It is possible for the members of the body corporate, at any general meeting, to direct the trustees to raise, or not raise, interest.

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.

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.