PRACTICAL APPLICATION OF THE CSOS & STSM ACTS TRUSTEE WORKSHOP TRAINING 1
Note The introduction of new legislation often entails ambiguities and conflicts between different legislation from the • outset, obviously not yet fully tested and clarified through the Courts Trafalgar has established contact with the CSOS Ombud to escalate queries and uncertainties; initial • responses have already been obtained A channel of communication is now available for any further questions to be clarified o The CSOS Ombud also has a training mandate; FAQ’s have been published; case directives will follow o • The views expressed in this seminar are Trafalgar’s interpretation of the new CSOS and STSM Acts, incorporating feedback from the CSOS Ombud, auditors and other relevant industry experts • A number of key issues will require case law to be fully clarified and resolved Whilst uncertainties remain, there are clear and actionable registration and compliance elements to commence 2
INDEX 1. Community Schemes Ombud Service Act (CSOS) Who does it apply to? What is a Community Scheme? The Functions of CSOS What must be done by Community Schemes? Fidelity Insurance cover CSOS levies What happens if you don’t comply? Using the CSOS dispute resolution channel 3
INDEX 2. Sectional Title Schemes Management Act (STSM) Insurance Levy Collections Rules Meetings Maintenance Financial Management 4
COMMUNITY SCHEMES OMBUD SERVICE ACT (‘CSOS’) (Act 9 of 2011) Gazetted (published) and effective on 7 October 2016 5
CSOS Act WHO DOES IT APPLY TO? All Community Schemes • WHAT IS A COMMUNITY SCHEME? • Community Schemes are defined as, thereby including, all types of complexes, namely Sectional Title Body Corporate • Homeowners’ Association (NPC and voluntary association) • • Share Block Scheme • Retirement Village An important objective of the CSOS Act is to provide an affordable and efficient dispute resolution service through an Ombud 6
CSOS Act THE FUNCTIONS OF CSOS • Dispute resolution service to all Community Schemes (including collection of arrear levies and other charges e.g. fines) Regulate, monitor and control schemes’ Governance Documents (e.g. rules, financial statements) • • Take custody of, preserve and provide public access to scheme’s Governance Documents Provide education and information • Monitor community scheme governance • Previous arbitration and legal processes for dispute resolution have not been (cost) effective and buyers into community schemes have, at times, found it difficult to source important governance documents 7
CSOS Act ACTION ITEMS FOR COMMUNITY SCHEMES • Appoint an authorised representative Register with CSOS by (practically) Friday the 4 th November 2016 (form CS1) • • Supply CSOS with the scheme’s Governance Documents (rules, AFS) before 5 January 2017 • Raise CSOS levies monthly from 1 January 2017 (2% of basic levy>R500, max R40 per unit per month) Arrange fidelity insurance cover [adequately covered up to R20 million by Trafalgar’s fidelity cover in terms • of Regulation 15(5)] • Submit Annual Returns to CSOS (AFS within 4 months of year end) May use CSOS as an alternative dispute resolution mechanism • There are simple and definite next steps that Trafalgar can, and will, assist with if so mandated 8
CSOS Act USING THE CSOS DISPUTE RESOLUTION SERVICE Dispute may be lodged with the regional CSOS Ombud using the prescribed form available on • www.csos.org.za/disputesprocess Form submitted by email, post or delivery ( complaints@csos.org.za) • Application fee of R50 (conciliation) or R100 (adjudication) will need to be paid with the application (payment • details awaited) noting that there is an exemption for households earning (net) less than R5, 500 per month • Applications will be initially screened for validity (internal dispute resolution mechanisms must be demonstrated) Conciliation • • Adjudication Adjudication orders will be enforceable in Magistrate or High Court depending on the quantum and nature of the order 9
CSOS Act WHAT HAPPENS IF YOU DON’T COMPLY? Section 34 of the CSOS Act deals with the offences and penalties • • It is a criminal offence not to comply with the CSOS Act The Scheme Executives may be held liable for non-compliance • Compliance with the CSOS Act is relatively easily achieved and Trafalgar is equipped to fully support all registration and compliance requirements included in our comprehensive management service ** 10
CSOS Act RESOURCES www.trafalgar.co.za/newlegislation (includes links to the full legislation documents) • • Trafalgar portfolio manager: questions can be escalated if necessary (to CSOS Ombud or Paddocks) • www.csos.org.za – FAQ’s and case directives The CSOS Ombud will be circulating case notes to clarify and address issues as they arise 11
CSOS Act Questions & Answers 12
SECTIONAL TITLE SCHEMES MANAGEMENT ACT, NO. 8 OF 2011 (STSMA) Gazetted (published) and effective on 7 October 2016 13
STSM Act INSURANCE There are only two major changes [in addition to the fidelity requirements as per CSOS Act and also alluded to in Prescribed Management Rule 23 (7)]: The requirement for the inclusion of subsidence cover noting that the Act is not specific on the extent of said cover; The majority of sectional title insurers all offer limited subsidence cover which arguably fulfills this • requirement • Full cover would entail review and acceptance of a geotechnical report (at the Scheme’s cost) • Full cover will likely result in a significant premium increase (approximately double the current insurance premium) The requirement that all BC’s do a formal and professional valuation at least once every three years – • This links directly to the requirement that there is a restriction of the ‘average’ clause [PMR 23(1)(c)] o which practically can only be achieved by the insured ensuring that the risk (BC) is correctly and adequately insured and for the correct value Worth noting that the Act now specifies a minimum amount of public liability cover, same being R10 o million which is well below all major sectional title insurer limits A professional replacement valuation every 3 years and adding subsidence cover are the major insurance related implications of the STSM Act 14
STSM Act LEVY COLLECTIONS Levy collections highlights one of the major conflicts of (now) prevailing legislation, that being the new STMSA • and (current) Debt Collectors Act which currently directs levy collection procedures and associated charges recovered from defaulting owners In terms of Prescribed Management Rule 25(4) the member is liable for and must pay all reasonable legal • costs and disbursements, as taxed or agreed by the member (our emphasis), incurred by the body corporate in the collection of arrear contributions or any other arrear amounts due and owing • Prescribed Management Rule 25(5) goes further to direct that no amounts other than a levy or amount due in terms of the Act, body corporate’s rules, judgement or order may be debited to an owner’s account (this clearly highlighting the conflict in now prevailing legislation) • Irrespective of the obvious conflict, it is Trafalgar’s opinion that the Debt Collectors Act still provides a valid legal basis by which to conduct arrear collection(s) but it is our opinion, after also discussing this very point with the Ombud, that all bodies corporate amend and update their Conduct Rules to allow for collection charges (ideally aligned to the Debt Collectors Act) to be raised on an owner’s levy account Conduct Rules should be updated as soon as possible to cater for these charges and fee structures should be renegotiated with attorneys to minimise the risk of monetary loss to the body corporate 15
STSM Act RULES • All rules must be approved by the Ombud and will only become enforceable from the date that it was certified by the Ombud (in the form of a certificate) • With the CSOS registration process, all current rules lodged with the deeds office will be reviewed and revalidated Rules not approved by the Ombud will require a new special or unanimous resolution to amend, that being • conduct and management rules respectively It is essential that Trustees apply and enforce only correctly registered rules. These must be available for review at all meetings. 16
STSM Act MEETINGS • A person must not act as a proxy for more than two members [Section 6(5) ] • The Act now directs that voting for Ordinary resolution be done in value as per the PQ, while Special and Unanimous Resolutions are required to be approved by both value and number – we note the potential conflict and await feedback from the Ombud although such ‘stalemates’ may be escalated to the Ombud or judiciary for relief in related instances • Quorum requirements: • When less than 4 primary sections or less than 4 members the quorum requirement is members entitled to vote and holding two thirds of the total votes of members in value • All other Schemes, members entitled to vote and holding one third of the total votes of members in value Quorum requirements, now more stringent, will ensure greater member participation 17
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