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2020/2021 has seen an acceleration in the rate of change in our lives. These changes have been felt across all sectors of society, and in many aspects of community living. As we settle in to the ‘new normal’ this article explores a few current issues, and offers some practical guidance to assist your estate to equip itself to meet future challenges.
Electronic meetings
Lockdown restrictions on gatherings saw many homeowners associations having to cancel or delay meetings and voting on important issues. Those HOAs that had electronic meeting and voting capability found themselves a step ahead. Those that were not had to quickly play catch-up, and put the necessary systems in place, or were forced to wait until restrictions eased up and physical meetings could be lawfully and safely convened. In order to avoid being caught short again it is important to ensure that your estate’s HOA is empowered to hold electronic meetings and/or allow for electronic participation in meetings. The first port of call is to examine your association’s governing documents to determine whether electronic participation in meetings is permitted or not.
Associations that are set up as non-profit companies in terms of the Companies Act, 2008 (the Act) are permitted by the Act to hold meeting by electronic communication, unless prohibited by the entity’s memorandum of incorporation (MOI). This is subject to the requirement in section 63(2) of the Act that ‘the electronic communication employed ordinarily enables all persons participating in that meeting to communicate concurrently with each other without an intermediary, and to participate reasonably effectively in the meeting’. If an association’s MOI excludes electronic participation in meetings, the MOI should be amended to allow for meetings to be held either entirely electronically, or to allow for electronic participation in meetings going forward. In voluntary associations that are governed by a constitution, the provisions of the constitution will determine whether electronic participation is permissible or not. The Act is not applicable, but, if the constitution does not expressly provide for electronic participation in meetings, it should be amended to allow for electronic participation in meetings.
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Once suitably empowered, the next step is to source and commission the appropriate electronic platform/s, update meeting packs and notices, and ensure that members and all other role players are fully informed and educated on all new processes as and when they are introduced.
Responsible social media use and trademarks
The increased need to find alternative ways to reach out to communities and for members to communicate with each other calls into play issues surrounding responsible social media use. The use of official and unofficial social media platforms, such as Facebook and WhatsApp, is on the rise and with it comes the inevitable use, and often misuse, of these platforms for the airing of grievances and complaints, some of which can deteriorate to the extent that claims of defamation arise.
The first step in gaining control of a community’s social media presence is the registration of the estate, HOA, or management association’s name and, where applicable, its logo as registered trademarks. If the registered trademarks are still held by the developer, the association may wish to seek the assignment of the registered trademark/s so that they fall under its control.
As well as controlling its trademark/s, an association should give serious consideration to framing appropriate rules governing responsible social media use by members, or an appropriate social media policy. This should include, amongst other criteria, standards pertaining to acceptable posts.
Disaster and emergency management
The COVID-19 pandemic has highlighted the need to put in place disaster and emergency management rules, plans and structures to ensure that estates can be effectively managed through disasters and emergencies. We recall, when lockdown restrictions were first introduced, the confusion and debate over the extent to which they applied within gated estates. To make our estates easier to govern in such situations it may well be advisable to clarify in an association’s governing documents/rules that during a disaster or emergency, management and/or the board is, inter alia, empowered to limit or suspend the use of communal facilities or amenities, and introduce and enforce such further rules as may be necessary in the communal interests.
And it’s not all about the pandemic…
Sustainability
With load shedding, service delivery issuesand deteriorating infrastructure being at the forefront in many communities, the need to adapt and advance to ensure sustainability of communities has become a priority. With this the implementation or updating of suitable rules, guidelines and/or policies governing the installation and use of generators, solar heating devices, water tanks and the like has become a necessity. In more dense estates and sectional title developments the framing of suitable controls can be quite challenging, and appropriate technical and legal guidance may be needed to ensure efficacy and fairness. Projects geared towards communities’ gaining increasing control over the provision and maintenance of services such as electricity and fibre will also, no doubt, gain momentum.
And it does not end there. More and more communities are looking beyond their boundaries to uplift and assist neighbouring communities by developing appropriate partnerships and initiatives. This can either be achieved through existing or new, purpose-framed structures. If just some of the energy and drive that goes into managing our estates is applied to such initiatives, estate communities should be able to foster positive relationships, and aid upliftment where needed, to the obvious benefit of all involved.
These are but some of the issues your estate should be addressing in order to thrive and meet future challenges.
