Governance of the Home Owners Associations (HOA)

4.1 Right to be represented by proxy

• In Terms of the companies Act, a member of a nonprofit home owners’ association may at any time appoint any person, who need not be a member, as a proxy
• A proxy’s appointment must be in writing, signed and dated
• A proxy’s appointment is only valid for 1 year after which it was signed or any other period specifically set out in the appointment document.
• A proxy’s appointment may also be revoked, in writing, unless otherwise stated
• A invitation to appoint a proxy must be sent to all the members concerned
• Should the member act directly and in person, the proxy’s appointment becomes immediately suspended
• A proxy is entitled to exercise, abstain from exercising, any vote of a member without discretion, except to the extent that the Memorandum of incorporation, or the instrument appointing the proxy, provides otherwise.

4.2 Record date for voting

The board of a company may set a record date for the purposes of determining which members are entitled to:

• Receive notice of a member meeting
• Participate in and vote in a member meeting
• Decide any matter by written consent or by electronic communication

A record date determined by the board may not be

• Earlier than the date on which the record date is determined
• More than 10 business days before the date of the event or action
• Must be published to the members in a prescribed and satisfactory manner

In the event that the board does not determine a record date for any action or event, the record date is

• In the case of a meeting, the latest date required to give notice
• the date of action or event for all other cases
• as specified by the MOI, where relevant

4.3 Members acting other than at meetings

A proposed resolution that could be voted on at a members meeting may instead:

• be submitted to members for consideration
• voted on in writing, within 20 business days after the resolution was submitted to them
• Adopted if it is supported by persons entitled to exercise sufficient voting rights for it to have been adopted as an ordinary or special resolution, as the case may be, at a properly constituted meeting.
• if adopted , have the same effect as if it had been approved by voting at a meeting
• used to elect a director

Within 10 business days after adopting a resolution, or conducting an election of directors, the HOA must deliver a statement describing the results of the vote, consent process, or election to every member who was entitled to vote or consent to the resolution, or vote in the election of the director, as the case may be

For greater certainty, any business of a company that is required by this Act or the company’s Memorandum of Incorporation to be conducted at an annual general meeting of the company may not be conducted in the manner contemplated in this section.

4.4 Members Meetings

• The board of a company, or any other person specified in the company’s Memorandum of Incorporation or rules, may call a members meeting at any time.
• a company must hold a members meeting at any time that the board is required by this Act or the Memorandum of Incorporation to refer a matter to members for decision;
• whenever required to fill a vacancy on the board
• when otherwise required
• whenever required by the company’s Memorandum of Incorporation.
• the board of a company, or any other person specified in the company’s Memorandum of Incorporation or rules, must call a members meeting if one or more written and signed demands for such a meeting are delivered to the company
• each such demand describes the specific purpose for which the meeting is proposed
• in aggregate, demands for substantially the same purpose are made and signed by the holders, as of the earliest time specified in any of those demands, of at least 10% of the voting rights entitled to be exercised in relation to the matter proposed to be considered at the meeting.
• A company’s Memorandum of Incorporation may specify a lower percentage in substitution and fall below the minimum percentage of voting rights required to call a meeting.
• A company, or any members of the company, may apply to a court for an order setting aside a such demands on the grounds that the demand is frivolous, calls for a meeting for no other purpose than to reconsider a matter that has already been decided by the memberss, or is otherwise vexatious.
• a members who submitted a demand for that meeting may withdraw that demand
• the company must cancel the meeting if, as a result of one or more demands being withdrawn, the voting rights of any remaining members continuing to demand the meeting, in aggregate, fall below the minimum percentage of voting rights required to call a meeting.

4.5 Notice of meetings

For a nonprofit company notices must be delivered

• 15 business days before the meeting is to begin
• The Memorandum of incorporation may provide for a longer or shorter period
• Less notice may be required if every person entitled to vote is present or votes to waive the required minimum notice of the meeting
• Notice must be in writing and must include
  • Date, time and place of meeting, and the record date for the meeting
  • The general purpose of the meeting
  • Any special purpose contemplated
  • A copy of any proposed resolution of which the company has received notice, and which is to be considered at the meeting, and a notice of the percentage of voting rights that will be required for the resolution to be adopted