The validity or voidness of a resolution taken at a meeting of the scheme’s executive committee or at a general meeting may be called into question. In this case any person with a material interest in the issue can require an order that the resolution is either void or invalid.
In terms of section 39 (4) (c) of the CSOS Act, an application may be for:
“an order declaring that a resolution purportedly passed at a meeting of the executive committee, or at a general meeting of the association-
(i) was void; or
(ii) is invalid”
Section 6(8) of the Sectional Titles Schemes Management Act, 2011, provides that:
“Where the unanimous resolution would have an unfairly adverse effect on any member, the resolution is not effective unless that member consents in writing within seven days from the date of the resolution.”
If an owner in a sectional title scheme alleges that a particular unanimous resolution does have an unfair adverse effect on her, but the trustees disagree and threaten to implement the resolution, the unhappy owner can approach the CSOS for an order under this provision to confirm the invalidity of the resolution on the basis of its unfair adverse effect on her.
In any type of community scheme a resolution taken at an executive committee meeting or by members at a member meeting may be declared invalid or void for a wide range of reasons. The issue:
- could be a procedural issue, such as the meeting not having been properly called; or
- could be a substantive issue such as the fact that the resolution is contrary to a provision in the scheme’s governance documentation or the law applicable to the community scheme.
An example of the type of order the CSOS could give is:
That a resolution purportedly passed at a meeting of the executive committee of the ABC Body Corporate to raise a special levy of R435 000 was void because there was no particular urgency to do the work that the levy was designated to fund.
In terms of section 41 of the CSOS Act:
(1) An application for an order declaring any decision of an association or an executive committee to be void, may not be made later than 60 days after such a decision has been taken.
(2) An ombud may, on good cause shown, condone the late submission of an application contemplated in subsection (1).
In calculating the number of days that has passed since the decision, you must exclude the date on which the decision was made. If the 60 day period expires on a Sunday or public holiday, the period is extended so that it expires on the next working day.
An example of the type of “good cause” required to allow an ombud to condone the late submission of an application could, for example, also include a situation where:
- the trustees of a sectional title scheme failed to distribute the minutes of the meeting as required under the prescribed management rules and the applicant therefore did not get the notice he or she was supposed to get that the resolution had been taken, or
- some person took steps that prevented the applicant coming to know of the decision that he or she now seeks to overturn.
If you would like to see the whole of the Community Schemes Ombud Service Act, 9 of 2011, including the full text of chapter 3 that covers applications, you can access this from Paddocks’ resource library.
Do you want Jennifer or Graham Paddock to draft your CSOS application so that you know it is compliant with the law and sets out your case properly, or to review the application you have drafted application before you submit it? Have a look at the Paddocks’ Consulting page.
For general help on the CSOS, including the special meanings of the words and phrases “association”, “common area”, “dispute”, “executive committee”, “owner”, and “scheme governance documentation” see the CSOS Information page.
Needing other assistance? Have a look at our Paddocks assistance page, which includes the helpful application guide explanation, for more information.
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