Bodies corporate are required to hold an annual general meeting within four months of the end of each financial year, which is the last day of September for sectional title schemes established under the Sectional Titles Schemes Management Act. Therefore, during the next couple of months, many owners will be preparing to attend their scheme’s Annual General Meeting and they may find that they need access to information held by their body corporate in order to adequately prepare for the AGM.
Gaining access to records held by a body corporate may sound simple in theory, but this can prove to be much harder in practice. This is a reprint of an article that owners have told us is very useful for understanding their rights to access body corporate records.
In terms of the prescribed management rules of the Sectional Titles Schemes Management Act, every body corporate is required to prepare and update an extensive list of records, including the following:
- minutes of general and trustee meetings;
- detailed lists of the contact details for every trustee, owner and tenant;
- consents and approvals given by the body corporate to members;
- Budgets and financial statements for the current financial year and previous six financial years;
- written contracts to which the body corporate is a party;
- any decision of an adjudicator, arbitrator, magistrate or judge in a proceeding in which the body corporate is a party,
- legal opinions obtained by the body corporate;
- correspondence sent or received by the body corporate and trustees;
- proper books of accounts that
a. record all of the body corporate’s income, expenditure, assets and liabilities;
b. disclose all amounts recovered from members by the body corporate or any managing agent or other service provider acting on its behalf;
c. include individual accounts for each member; and
d. contain all other information necessary to allow members to assess the body corporate’s financial situation and their financial situation in regard to the body corporate; and
- bank accounts for its administrative and reserve funds.
It surprises me that many trustees and managing agents aren’t aware that they are required to prepare and keep these records. What is even more surprising is that members of bodies corporate don’t realise that they have an unfettered right to access these records.
I am often approached by members of bodies corporate advising that they are unable to gain access to the records of their body corporate and requesting advice on the legal steps which can be taken to gain access to these records.
I explain to my clients that in terms of prescribed management rule 27(4) they are entitled to make a written request to their body corporate for access to these records and that they are not required to provide any reason or justification for such a request. In terms of prescribed management rule 27(5) the body corporate is obliged to make these records and documents available for inspection and copying within 10 days.
It is important for trustees and managing agents to understand that the body corporate has a legal obligation to keep detailed and updated records and that it has no grounds to refuse a request from a member to access these records, although it is entitled to charge a fee for a copy of a record or document (other than the rules), provided that the fee is not more than the reasonable cost associated with the process of making the copy, and the body corporate may refuse to supply the copy until the fee is paid.
So when it comes to the records of a body corporate and gaining access thereto, understanding the respective rights and obligations of the trustees and members will go a long way to avoid unpleasant and costly legal disputes.
Article reference: Paddocks Press: Volume 16, Issue 11.
Specialist Community Scheme Attorney (LLB, LLM), Auren Freitas dos Santos, is the Director of The Advisory, a boutique consultancy specialising exclusively in community schemes law. Contact him at www.theadvisory.co.za if you require any assistance with a dispute in your community scheme.
This article is published under the Creative Commons Attribution license.