Home owners’ associations that are non-profit companies must deliver the notice for a members’ meeting, such as the AGM, 15 business days before the meeting. Right, seems simple enough. But is it?
How long before the meeting do you have to post the notice to make sure it is delivered 15 days before the meeting? What if it isn’t the AGM but a meeting about some contentious issue and you have to get everything right to avoid a resolution being challenged on a technicality like insufficient notice of the meeting?
The Companies Act (the Act) says the notice must be “delivered”, but what exactly does that mean and imply?
The Act says in section 62 (1) “The company must deliver a notice of each shareholders meeting in the prescribed manner and form…”
“Prescribed” is defined in section 1 of the Act as meaning “determined, stipulated, required, authorised, permitted or otherwise regulated by a regulation or notice made in terms of this Act;”
HOA Management course Table CR 3 in the Regulations tells us exactly how the notice may be transmitted to a person: It may be faxed, emailed, sent by registered post or hand delivered. The table also says when the notice is “deemed delivered”, that is, when the delivery legally happens.
So, depending on which method of delivery is used, one can work out when the notice must be sent so that the member gets it 15 business days before the meeting.
Let’s use some examples to show how this works.
Assume the notice is going to be emailed. Table CR 3 tells us that the deemed delivery happens at the time and date recorded by the sender’s computer. If the notice is faxed, delivery is at the time and date recorded by the fax receiver. Therefore, to be safe the notice should be faxed or emailed no later than the sixteenth business day before the meeting.
Using registered post is a bit more complicated. The notice is deemed delivered seven days after the post office record of its posting. That means it must be posted at least 22 business days before the meeting.
If the notice is hand delivered, the legal delivery date and time is that recorded on the delivery receipt. This means that it is not sufficient to just hand the notice to the owner, or slide it under her front door; you have to get a signed receipt.
The above explanations should allow one to calculate the lead time necessary for the preparation of the various documents that might need to be included in the notice of a meeting, whether it is the AGM or a meeting for some special purpose.
Written by Anton Kelly who is one of the course conveners of the Paddocks Home Owners’ Association Management course. For more information please visit www.Paddocks.co.za.