Vis Major (‘Force Majeure’) is a Latin term meaning an event of such magnitude making the performance of obligations on a contract impossible.

 

Such an event must be outside the control of both contracting parties and will have the effect, where vis major is proven, that contractual obligations are suspended. In some instances, contracts can be cancelled, depending on the nature of the contract.

 

Levies are raised to cover the costs of maintaining infrastructure such as the provision of water and electricity and ‘luxury’ facilities such as the use of swimming pools golf courses and the like.

 

The liability to cover these costs arises not from a contractual arrangement, but from co-ownership of such infrastructure, as regulated in terms of the Sectional Title Act the Sectional Title Management Act.

 

As such, the contractual principle of Vis Major would not apply, and trustees are denying access to facilities such as swimming pools and golf courses in compliance with the State of Emergency regulations and Directives by Government.

 

Homeowners that may be struggling to pay their levies are advised to contact their trustees or managing agents to arrange a payment plan acceptable to the parties.

 

COVID 19: DUTIES OF TRUSTEES TO HOLD MEETINGS SUCH AS AN AGM

 

The Government, in response to the COVID-19 pandemic, has declared a State of Disaster in terms of the Disaster Management Act 2002 and issued regulations thereto which prohibits the gathering of people.

 

The Sectional Title Management Act and the Management Rules promulgated thereunder requires a Body Corporate to convene an Annual General Meeting within a period of 4 months from year-end.

 

Clearly, the Regulations and Directives issued by Government take precedence, and it would no longer be possible to call for a physical meeting.

 

Management Rule 17 (10) allows for meetings to take place using technology such as telephone, WhatsApp, Zoom or Google Hangouts, provided such method or methods are accessible to all members and permit persons participating in the meeting to communicate with each other during the meeting.

 

Management Rule 17 (9) does allow for a Waiver by members to hold an AGM, provided the members can agree on all resolutions to be passed at such meeting.

 

Thus, where meetings can’t take place online, it may be advisable for the trustees to prepare the resolutions that are to be adopted such as the approval of the financial statements of the Scheme, the appointment of trustees and the approval of budgets and insurance values.

 

Other more contentious matters can stand over until such time that a physical meeting can take place. This can work in smaller schemes as all members would be required to adopt such resolution in lieu of the AGM.