By Prof Graham Paddock

Prof Graham PaddockBelow is an example of two of the questions on the discussion forum on Paddocks Club. We want to show what is available to our Community Members!

Q1: Suing to recover trustee payments

Question:
Graham,

At a special general meeting of owners it was resolved that the trustees will recover all honorariums paid to previous chairpersons, as no special resolutions were taken at the time. May the trustees instruct the managing agent to debit the levy accounts of the previous chairpersons which the honorariums received? And what would the implications be? The previous chairpersons have indicated that this will be disputed and they are currently seeking legal advice. We, as the managing agent, are concerned that should the BC proceed with legal action, legal costs could exceed the actual claim and, though no formal resolution was tabled at the time, it was mentioned “casually” in the minutes of general meetings by the previous managing agent. No objections were noted until now.

Answer:Paddocks Club
No, there is no legal basis on which you can debit the levy accounts. You think the BC has a refund claim, but there is nothing proved yet or owing in law.

I suggest that the trustees should get a quote for legal fees and then a direction from owners to see if they think that it is worth arbitrating or litigating the matter. This could cost a lot of money.

Graham

Q2: Can trustees change constitution?

Question:
Can a clause in the Home Owners Constitution be changed by the Trustees if there is provision that any amendments must be consented to by the relevant Municipality? Would the amendment without the Municipality’s consent be void?

Answer:
I presume that this common law association’s constitution does not provide for such changes by the trustees, but only by owners, and that it stipulates a particular level of owner agreement as well as the local municipality’s consent for any changes to the constitution?

In these circumstances, my view is that any purported change to the terms of the constitution by the trustees is void because it does not comply with the required procedures.

Graham
 

Article reference: Paddocks Press: Volume 7, Issue 3, Page 4

Professor Graham Paddock is available to answer questions on the discussion forum for Community Members of Paddocks Club. Get all your questions answered by joining Paddocks Club at www.PaddocksClub.co.za.


This article is published under the Creative Commons Attribution license

2 Comments.

  • Kevin Holloway
    06/02/2018 14:42

    Does an HOA have to send out minutes of all meetings to all owners of property in the complex

    • Paddocks
      16/02/2018 21:38

      Good day Kevin,
      Thank you for your comment. We would love to help but unfortunately do not give free advice. Here’s what we recommend:
      – We offer a Free Basics of Sectional Title 1 week short course starting soon: http://www.paddocks.co.za/courses/free-basics-of-sectional-title/. You’ll be able to ask your course instructor any related questions.
      – We offer consulting via telephone for R390 for 10 minutes. Please call us on +27(0)216863950.
      – We have Paddocks Club, an exclusive online club, headed by Prof Graham Paddock, to help you get answers to your questions about community schemes: http://club.paddocks.co.za/

      Kind regards,
      Paddocks