FOR THE RECORD.
Ever heard these comments from owners before?
- “I’ve asked the MA for the information 3 times now but still no response.
- “The old MA is refusing to hand over our information to the new MA”.
- “I’m selling my unit and the Bank wants a copy of the plans/rules. The MA is charging me
R1.75 per page! 35 pages at R1.75 pp incl VAT = R70.44.
- “The MA refuses to provide me with certain information, claiming that it is “confidential”.
WHAT IS COMPLEX MATTERS?
Complex Matters is South Africa’s’ first Independent Data Storage Bureau for Community Schemes (Sectional Title, Homeowners etc). It can also be adapted for use by a wide range of other businesses wanting to store their data in electronic form.
To simplify matters, here are the abbreviations used;
BC all Community Schemes or other businesses
T Trustees, Directors, Members
MA Managing Agent
CM Complex Matters
POSSIBLE MANAGEMENT SCENARIOS.
- The T manage the affairs of the BC
- The T negotiate with a MA to take over some, or all of their duties.
- The MA does not have Electronic Data Storage capabilities.
- The MA has their own Electronic Data Storage system.
WHY USE AN INDEPENDENT DATA STORAGE BUREAU?
Any BC managing their own affairs will be only too aware of the problems caused by filing everything on paper, especially when handing over to newly elected Trustees.
The same problems, although on a much larger scale apply to 2 and 3 above.
Even with those MA that do have their own Electronic Data Storage systems, still there appears to be problems with getting some information.
THE SOLUTION.
Take control of your Data and put all the above problems behind you.
BODIES CORPORATE: - STSMA 8 OF 2011.
The words “Trustee”, “Trustees” and “Body Corporate” (BC) appear 355 times in the Management Rules, and “Managing Agent” (MA) appears only 39 times and these are mostly in relation to a “Management Contract”.
2 (j) "managing agent" means any person who provides scheme management services to a BC for reward, whether monetary or otherwise, including any person who is employed to render such services.
5 (b) A BC may appoint a MA and must, if required by a resolution of members, appoint a MA to perform specified financial, secretarial, administrative or other management services under the supervision of the trustees.
Any information relating to a BC is the property of that BC. Any personal or other software used by the MA is the property of the MA but any data created by this software belongs to the BC and must be provided to the BC as and when requested.
HOA AND OTHER COMMUNITY HOUSING SCHEMES.
These are all governed by different Acts of Parliament, but I have not found anything which negates the basic premise that any information stored cannot be stored electronically.
POPIA
The purpose of the Protection of Personal Information Act No 4 of 2013 (“POPIA”) is, among other things, to promote the protection of personal information of a person to whom the personal information relates and to establish certain conditions and minimum requirements for the processing of personal information. POPIA is applicable to all Community Schemes and any disregard of its provisions can result in punitive consequences. By now all parties involved in community housing schemes should be aware of the POPI Act and that it will affect them. Even if the provisions of POPIA do not apply to your Scheme or business, it would make good sense to manage your scheme as if it did.
“Andrew Schaefer, managing director of national property management company Trafalgar, said the new legislation does not stipulate that personal information cannot be collected – only that when it is collected, it must be properly managed and protected.” (extract from an article published in Businesstech 27 April 2021).
Trustees of sectional title schemes are mandated by law to control, manage and administer the scheme on behalf of its members and may appoint MA’s to assist them. In the performance of these duties, BC or MA must obtain certain personal information from the owners in the scheme.
BC and MA must ensure that this information is only used for the purposes for which it was given and any 3rd party request for information must be weighed against this background. If a request does not pass this test, the BC or MA may not distribute such information without first obtaining the approval of the member concerned. Should approval not be obtained, the information may not be distributed at all. POPIA provides for hefty penalties and administrative fines for the contravention of its provisions.
Owners Duties and Responsibilities:
Owners/members of a Community Scheme are required to provide accurate personal information to the BC or MA where such information is necessary for the effective running of the scheme.
Conclusion:
Obviously, all the information collected or generated must be stored, either on paper or electronically. Thus, the use of an electronic data storage service falls squarely within the powers of the BC.
ABOUT THE OWNER.
Rodger Reinders has had a long and varied career in Sectional Title. In 1983 when he started as a Body Corporate Manager under the provisions of Act 66 of 1971. After a short stint as “Property Administration Manager” for the Mines Pension Fund he returned to Body Corporate Management in 1991, working for the founder of NAMA.
In 2003 he started on his own as a Property Estate Agent as well as a Consultant for a number of large property investors. One of the functions he performed for his clients was to attend the AGM and raise any concerns he found in the AGM budget and other documentation.
He was the Court Appointed Administrator of various Bodies Corporate ans is still the Administrator of a large Complex in Durban. He and has held dozens of “Trustee Training Courses” in various cities.
Rodger no longer does consultancy work or advises on any Sectional Title related matters. He spends most of his time working on his Software programs, Complex Matters and U-Sign-It, (an Electronic Signature System) or doing investigations of COJ accounts.