What are owners’ rights when wanting to contact others in their community scheme?

27 May 2022 | Nicole Nel

There are times within a community scheme when an owner may, in between annual and/or special general meetings, require the opportunity to engage with their fellow owners. This would require the contact information of all the owners within their scheme, most efficiently through their email addresses, in order to inform them of certain information relating to the scheme, or obtain their support. For purposes of this article, we will be focusing on sectional title schemes and the Sectional Titles Schemes Management Act 8 of 2011 (“the Act”).

In terms of Prescribed Management Rule (“PMR”) 27(2)(b)(v) of Annexure 1 of the Regulations to the Act, a body corporate is required to prepare and update lists of members with their personal information, including their contact number/s and email address.

PMR 27(4) goes on to provide that upon receiving a written request from a member, or a person duly authorised by a member, a body corporate, namely the trustee or managing agent, must make records referred to in this rule, as well as PMR 26, available for inspection by, and provide copies to, such requesting member within the scheme. This rule further provides that such a request must be complied with by the body corporate within 10 days, unless it is a request for rules, in which case, the body corporate has 5 days to comply with the request for access and copies.

The Act therefore clearly provides for owners being permitted access to the information of other owners within their scheme, including their email address.

However, a spanner has been thrown into the works, when it comes to the intersection between the Act and the Protection of Personal Information Act 4 of 2013 (“the POPIA”).

Many professionals within the sectional titles schemes industry are of the opinion that due to the application of the POPIA, the personal information of members, including their contact information, may not be circulated to other owners within the scheme, as this would result in a contravention of the POPIA. This is not a view held by our offices as we have indicated in previous articles and webinars, click here to be directed to our articles and click here to be directed to our webinars.

However, according to the Community Schemes Ombud Service (“CSOS”) in a statement published on 24 May 2022, in reply to questions raised by the Democratic Alliance Shadow Minister of Human Settlements, the purpose of the POPIA in schemes is to protect data subjects, i.e. owners and occupiers within a scheme, from security breaches such as unauthorised dissemination of personal information belonging to or relating to the data subjects. POPIA therefore achieves this goal by outlining the 8 principles which data processors, the scheme executives and managing agents, must adhere to when collecting, processing, storing, and deleting personal information. Therefore, as long as bodies corporate are complying with these principles in the POPIA, owners within the scheme may be provided with the personal contact information of their fellow owners.

CSOS further provides, in the above statement, that the POPIA has not changed the type or nature of information which scheme executives, managing agents or bodies corporate may obtain or process from their members. The POPIA has only changed the manner in which these persons go about in collecting, storing, and processing this personal information.

If you are an owner seeking the email information of other owners in your scheme to engage with them on a matter, you are entitled to request this, but make sure that you only use the personal information received for a lawful purpose, that is in compliance with the Act and the POPIA.We hope that this article opened your eyes to some of the traditional duties that managing agents are expected to perform in terms of their management agreements with body corporates, and that you will think twice before assuming that being a managing agent is a simple task.

For more information or our assistance to obtain your fellow members records, please contact us at TVDM Consultants on info@tvdmconsultants.com or 061 536 3138.

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