Regulatory, Compliance, Legal and Documentation DetailedAssessment Regulatory, Compliance, Legal and Documentation Note to the user This assessment is intended to assist existing and prospective Trustees/Directors/Estate Management/Office bearers/Third Party Managers of Body Corporates/Home Owners Associations/Retirement Villages or Shareblock Schemes (Community Schemes) to identify the existing level of governance, areas of weakness/vulnerability and the risks in these bodies and to offer advice on how to better manage these risks and improve overall governance. This assessment will also assist in helping Trustees/Directors/Estate Management/Office bearers/Third Party Managers in carrying out their fiduciary roles and responsibilities. Regulatory and Legal Body Corporate/Complex/Property Name/Home Owners Association Name of Responsible Party/Trustee/Director/Estate Manager: Is the Community Scheme subject to legislation and/or regulations e.g. Sectional Title Schemes Management Act, Community Schemes Services Ombud Act, The Housing Development Schemes for Retired Persons Act, Share Blocks Control Act, Property Practitioners Act, Companies Act? * Yes No Don't know/Can't establish Is the Community Scheme fully compliant with the required legislation and/or regulations that are applicable to it? * Yes - we comply fully with all relevant regulations Yes to a large degree - we try to be compliant as best we can but still fall short in some areas To some degree -we focus on only those areas of the law that might impact us No not at all - we are totally non-compliant Don't know/Can't establish If an existing scheme, has the Community Scheme been formally registered and constituted (i.e. has a certificate of registration where applicable been obtained from the Ombud’s office (CSOS) and have any changes to the standard management and conduct rules in existing complexes been found to be reasonable and acceptable and/or are the Title Deeds of the Retirement Village endorsed to reflect the Life Right scheme where applicable? * Yes No Don't know/Can't establish Has the Community Scheme been issued by the Community Schemes Ombud Service (CSOS) Office with a certificate of approval of its phase 2/discretionary rules as contemplated in section 10 of the Sectional Titles Schemes Management Act, and have all changes made to the existing standard management and conduct rules of the Community Scheme been lodged with CSOS and found to be reasonable and acceptable? * Yes - this is held and all changes to rules have been lodged/submitted and accepted. Yes to a degree - approval of some changes are still outstanding. No, not really - a number of changes have not been lodged. Don't know/can't establish if rules and any changes have been lodged/found acceptable. No, this is not held/changes have not been lodged. Don't know/Can't establish If a new scheme, has the Community Scheme registered the property development with the Ombud’s offices together with supporting documents i.e. complex management and conduct rules, together with any changes which have historically been made to these rules and provided their domicilium address to the Ombud, the local municipality and local registrar of deeds? * Yes No Don't know/Can't establish Not Applicable Has the Community Scheme filed its audited financials along with form CS2 annual return to the Ombud’s (CSOS) offices together with the budget for the following year? * Yes Yes - but incomplete/late submission No - we are non-compliant here Don't know/Can't establish Does the Community Scheme comply with all the required zoning and planning approvals e.g. were site development plans submitted and complied with, were non-compliance areas inspected, is a certificate of occupation held, and in the case of a new sectional title development, has an application to open a register been submitted? * Yes, fully compliant in these regards Don’t really know/not sure if all elements were/have been complied with No, definitely some elements of non-compliance No, not at all - totally non-compliant Not applicable to us Where a Home Owner's Association (HOA) Community Scheme, do you have a clear formal constitution and/or Memorandum of Incorporation (MOI) in place? * Yes - these documents are in place and form the corner stone of our governance Yes to a degree - there is a Constitution/MOI in place, these documents are obsolete/dated No, not really - there is some form of simplistic/limited/unformalised/token documentation in place No, not at all Don't know/Can't establish Not Applicable to us Is the constitution/MOI being adhered to/followed? * Yes - these are always strictly adhered to Yes to a degree - while there is a constitution/MOI in place, these documents are selectively adhered to/applied No, not really. The constitution/MOI is dated/largely irrelevant/not applicable and as such is not followed No, not at all Don't know/Can't establish Is the Community Scheme contributing the required 2% of levies fee in line with the Community Schemes Act provisions/requirements? * Yes - the CSOS levy payments are fully up to date Yes to a degree - some outstanding fees are still to be paid over to CSOS No, not really - we are recovering the required levy fees but these have not all been paid over as required No - we have levy fees outstanding/are in arrears in both our recoveries and payments due to CSOS No, not at all - we are totally non-compliant Don't know/Can't establish Has the Community Scheme, notably Sectional Title Schemes, established a reserve fund to cover the cost of future maintenance and repairs to common property/infrastructure - is this reserve fund equal to at least 25% of the scheme's total annual levy budget, and if not, is 15% of the total levy budget for the next year being recovered in terms of the Sectional Title Schemes Act? * Yes - we fully meet the requirements of the Sectional Title Schemes Act (STSMA) Yes to a large degree - we establish reserves in the normal course and are largely compliant Yes, to some degree - we are trying to recover additional levies to meet the requirements of the Act Yes to a small degree - we have made some progress to meet the reserve requirements but we are struggling to meet the 15% requirement No, not really - we have only accumulated minimal reserves/are falling far short of the requirements No - not at all. We are totally non-compliant Not Applicable to us Has the Community Scheme appointed an Information Officer as required in terms of Protection of Personal Information (Popi) regulations i.e. to encourage and ensure compliance with the conditions for the lawful processing of personal information and to deal with requests made under the POPI Act.? * Yes - we have formalised the appointment/nominated an Information Officer in terms of Promotion of Access to Information Act, registered with the regulator and paid our fees. Yes to some degree - we are doing this but have not formalised the appointment/responsibility and registration. No, not really - we are aware of the requirement but are not compliant here. No not at all - we have done nothing/are totally non-compliant/don't see it as a priority Don't know/Can't establish Are the POPI controls adequate for the level and extent of personal information held i.e. from visitors registers, access control systems, cameras, accounting/invoicing systems, mailing systems, owner/resident data base, social media group sites etc? * Yes - comprehensive controls and policy in place Yes to some degree - we are doing our best but we don't always have control over our information No, not really - while we have controls and a policy in place these are sometimes not adhered to No - our processes are totally inadequate/not being adhered to No not at all - we have nothing in place/we are at serious risk of having information compromised Don't know/Can't establish Does the Community Scheme get a formal professional valuation/survey for the insurance of the buildings/property at least every three years as required in terms of the Act and is this tabled at the AGM? * Yes - consistently done and tabled Yes - with some exceptions and delays No, not really - we are very inconsistent here/this is not always tabled No, not at all Don't know/Can't establish Have all changes to the Management and/or Conduct rules followed the required processes and procedures, voting requirements and passing of resolutions before being adopted i.e. Special General Meeting of the Community Scheme where by unanimous or special resolution the required support was obtained? * Yes - we are very strict around ensuring that the required processes and approvals as regulated are obtained. Yes to a degree - approval of some changes haven't always followed the required processes. No, not really. In some cases these have been changed by the Trustees/Directors and merely advised to owners. No, not all. We are totally non-compliant here. Don't know/Can't establish if all rules changes followed the required process and procedures. Does the Community Scheme hold its Annual General Meeting (AGM) either physically or virtually, as and when required in terms of the act i.e. annually within four months of its financial year end? * Yes - consistently. Attendance register is strictly maintained/a voting and attendance portal application is used for virtual meetings Yes - mostly as required in terms of regulations Yes to some degree - very seldom take place as required by law No, not really - often rescheduled/postponed No, never - meetings totally dysfunctional/fail to take place Don't know/Can't establish Are the elected Trustees, correctly nominated 48 hours before the AGM and were they formally elected at the AGM? * Yes - full procedural correctness followed Yes, to a degree - not always the case with election of trustees No, not really - we are often not in a position to practically comply with this requirement No - procedurally dysfunctional/often unconstitutionally nominated/elected No never/not at all Don't know/Can't establish Was a chairperson of the Community Scheme formally elected at the meeting of the Trustees? * Yes - formally elected Yes, to a degree - but co-opted/nominated from Trustees/Directors No, not really - unconstitutionally elected or co-opted representative/office bearer No, we don't have a Chairman/Chairperson/totally dysfunctional Don't know/Can't establish Are the required quorums being obtained at AGM's/SGM's i.e. for body corporates that have less than 4 primary sections or members (only 3 or fewer primary sections or members), two thirds of the total value of votes must be present or represented; and for any other schemes, one third of the voting values being required? * Yes - consistently. An attendance register is strictly maintained/an attendance and voting portal application is used for virtual meetings Yes, on most occasions - but we rely heavily on proxy votes/virtual participation by owners No, not really - on very few occasions/we normally have to re-convene meetings due to a lack of a quorum No, never - we invariably have to re-convene our meetings due to a quorum not being obtained Don't know/Can't establish Is the counting of votes and proxies, the establishment of quorums for the passing of resolutions at AGM's/SGM's procedurally correct and in line with the prevailing legislation/regulations? * Yes, always Yes, to the best of our knowledge No, not really - we rely entirely on the Managing Agents for the management of this aspect No, this element of compliance is never properly adhered to by Trustees/Directors/Chairman of the Meeting/the Managing Agents Don't know/Can't establish Is the Insurance disclosure being made in terms of the Sectional Title Schemes Management (STSM) Act in the Financial Accounts i.e. type of insurance held, premiums, valuations, claims settled, excesses applicable to owners/lessees or the Community Scheme? * Yes - required disclosure Yes, in most respects Yes, to some degree No Are the Managing Agents registered as Estate Agents in terms of the Estate Agency Affairs Act/Property Practitioners Act? * Yes Yes - to some degree e.g. registration incomplete/not renewed/not current No Don't know/Can't establish Are the Trust Accounts conducted as prescribed by the act, audited annually and that all monies received are covered in terms of the Fidelity Fund? * Yes Yes - to some degree e.g. audits not up to date No Don't know/Can't establish Are the Managing Agents registered as Debt Collectors in terms of the Debt Collectors Act? * * Yes No Don't know/Can't establish Albeit that membership is not compulsory/a regulatory requirement, are the Managing Agents/Estate Management/Developers/Operators of The Community Scheme members of The National Association of Managing Agents (NAMA) and/or the Real Estate Business Owners of South Africa (Rebosa)? * Yes Membership not up to date/lapsed No Don't know/Can't establish Has the Community Scheme been appropriately registered for tax and has a Public Officer been appointed? * Yes - correctly registered and represented by the Trustees/Directors/Accountants/Managing Agents/Developer/Operator Yes, to some degree - the Public Officer is no longer correct/valid or in place, PAYE/UIF is not being recovered No, not really - lack of clarity around tax registration/incorrectly registered/other revenue under the tax threshold No, not at all - remain unregistered/non-tax compliant in all respects Don't know/Can't establish Not applicable Are documents and contracts being stored/retained for the required periods in terms of regulatory requirements by the Trustees/Directors/Estate Management/Managing Agents/Developers/Operators? * Yes, definitely. We have made this a specific area of focus as well as to ensure continuity in the Community Scheme. Yes, to a large extent. No, not really. While Trustees/Directors have tried to archive and retain key historic required regulatory records and documents this has not always happened. No, many key documents have been lost/we have not been able to find a number of key documents/required regulatory records. No, not at all. Our records are non-existent/have been lost along the way by Trustees/Directors/Estate Management/changes in Managing Agents/Operators/Accountants. Don't know/Can't establish Have all the contracts, service agreements and key arrangements in place for the Community Scheme been formalised in signed enforceable contracts or agreements? * Yes, absolutely. We ensure that contracts are in place for all critical elements of the Community Scheme, including employment contracts, and do not allow the commencement of any work until the required contracts, agreements or terms and conditions have been accepted and signed. Yes, we try and ensure that all key elements of the Community Scheme are covered by solid contracts and agreements. Yes, to a degree. Despite best efforts of Directors/Trustees, we have been unsuccessful in formalising a number of arrangements into written agreements or contracts. No, not really. While we have contracts in place, we are also heavily reliant on verbal agreements and undertakings which could have a major impact on the Community Scheme if they were disputed or not honoured. No, not at all. We have many unsigned/unformalised contracts or agreements, including employment contracts, which have not been concluded with counterparties, where the provision of services or contracts has commenced/taken place. Don't know/Can't establish Does the Community Scheme hold the required Certificates of Compliance (COC's) from accredited service providers in respect of electrical fencing, gate motors, lighting, CCTV, fire equipment (hoses/reels/hydrants/smoke sensors) etc. and/or gas where applicable? * Yes - proactively inspected/formalised and renewed every 2 years/or as required Yes, to a large degree - most key areas compliant/some areas remain non-compliant No, not really - certificate/s expired/renewals and/or service requirements and/or inspections not undertaken unless forced on us No, not at all - totally non-compliant here/never attended to post initial installation Not applicable to our Community Scheme Don't know/Can't establish Is the Community Scheme currently involved in or likely to be involved in, litigation with any parties which could have a material impact on the Community Scheme i.e. with owners, developers, service providers, leaseholders, neighbouring properties, contractors etc? * Yes - we are involved in complicated/lengthy litigation which could have a material impact Yes, to some degree - we have a few matters, but these are manageable No, not really - normal issues around levy/outstanding dues No, not at all Don't know/Can't establish If you are human, leave this field blank. 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