Chapters of the article
According to the law, each community of owners shall compulsorily establish two types of bodies. These are:
- thestatutory body – i.e. the committee or chairman of the owners’ association; and
- the assembly of owners.
However, the statutes may go further and establish other bodies – for example, control bodies. It is necessary to determine the number of members, the method of convening and the powers, and also to ensure that they do not have powers that belong by law to the assembly or the statutory body.
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The Assembly, its members and its powers
The supreme body of the HOA is the assembly, which consists of all unit owners. Each of them shall have a number of votes corresponding to the size of his/her share of the common parts of the house and land. Only if the owner of a particular unit is the HOA itself, its vote shall not be taken into account. It may happen that all the units are owned by a single person, then the powers of the assembly shall be exercised by that owner.
Generally, the presence and consent of a majority of the owners present is required for a quorum to be present and for decisions (in the form of a resolution) to be taken. This applies to all matters, except in situations where the statutes require a higher number of votes (a qualified majority, e.g. three-quarters of the votes of all owners).
The law provides for a minimum exclusive competence of the assembly, i.e. to decide on the following issues:
(a) amendment of the statutes,
b) election and removal of members of elected bodies and deciding on their remuneration,
(c) approval of the budget, the financial statements, the profit and loss account and the report on the management of the owners’ association and the management of the house and the land, as well as the total amount of the contributions for the management of the house and the land for the next period and the decision on the accounting or settlement of unspent contributions,
(d) the approval of the type of services and the method of charging for the services to the units,
- membership of the owners’ association in a legal entity operating in the housing sector,
- repair or maintenance of the common area or structural alterations to the common area which do not require a change in the declaration, if the costs exceed the amount laid down in the implementing legislation; this shall not apply if the statutes provide otherwise
(f) the granting of prior consent
- for the acquisition, disposal, alienation or encumbrance of immovable property or for any other disposition thereof,
- the acquisition, disposal or encumbrance of movable property the value of which exceeds the amount laid down in the implementing legislation, or any other disposal thereof; this shall not apply unless the statutes provide otherwise,
- when voting on the conclusion of the credit agreement of the JUA, including approval of the amount and terms of the credit,
- the conclusion of an agreement to create a lien on the unit, provided that the unit owner concerned has agreed in writing to the conclusion of the lien agreement,
(g) the designation of the person who is to carry out certain activities of the management of the building and the land, as well as the decision to change that person,
(h) deciding on other matters specified by law, the statutes or matters reserved for decision by the assembly.
Per rollam decision-making
Per rollam decision making can be allowed by the statutes and it is only recommended to have this possibility enshrined in the statutes. This will allow voting in cases where the meeting does not have the required number of owners (votes) or where other circumstances (such as lockdown) arise where a meeting of owners is not possible. If this option is not provided for in the statutes, it is possible for the convener of the meeting to propose a per rollam vote within one month of the date on which the unsuccessful meeting was called (i.e. one where only a small number of owners met).
Theout-of-meeting decision shall take the form of a written statement by the owners on the full text of the draft decision. The proposal must always include at least the draft decision and the documents necessary for the consideration of the proposal, as well as an indication of the time limit within which the unit owners are to express their views.
The unit owner must make a statement (including the day, month and year on which the statement was made) and affix his signature to the document containing the full text of the draft decision. The approval of a majority of the votes of all unit owners is required to pass a resolution outside a meeting of the owners’ association, unless the bylaws require a higher number of votes. Subsequently, the statutory body shall notify the unit owners in writing of the outcome of the decision outside the meeting and, where appropriate, add the content of the resolution adopted.
Statutory body, its powers and members
In the vast majority of cases, the statutory body shall be the committee, unless the statutes provide that it shall be the chairman of the owners’ association. The number of members of the committee is not specified by law; typically there are committees of three members. An odd number of HOA committee members with respect to their vote can certainly be recommended. Theoretically, any person (even a legal person) can be a member of the body , regardless of whether or not they are a member of the owners’ association. However, the statutes may impose a condition that only a member of the owners’ association may be a member of the body. Other eligibility requirements and conditions may be added or extended if necessary.
The statutory body shall be responsible for everything that the statutes, the law or a decision of a public authority does not entrust to another body. Different members of the committee may also have their respective competences laid down in the statutes. It shall also apply that a member of the statutory body represents the owners’ association in all matters.
On the contrary, some HOAs prefer the option of hiring a professional chairman of the HOA who is external.
Election of committee members
The statutory body is elected and dismissed by the assembly. No one else can do so. Appointment as a committee member is by election.
If the number of members falls below half, any of the unit owners may apply to the court for the appointment of the missing members. Court-appointed members shall be appointed for a limited period only, until new members are called in accordance with the procedure laid down in the statutes.
The appointment of a committee may also be sought from the court if the members of the JVU are not interested in participating in the committee (or in the position of the chairman of the JVU). The court then appoints a guardian of the JVU, who is usually one of the lawyers on the list maintained by the court for this purpose. The guardian does not exercise the full function of the statutory body, his main task is, according to the law, to seek the restoration of the proper statutory body.
Obligations of the JAC committee
In addition to the duty to act with due care,the Civil Code imposes other sub-duties on the statutory body, namely:
- keeping a list of owners,
- convene a meeting of the assembly at least once a year,
- provide unit owners with information about the association,
- ensuring the collection of contributions for the management of the building and the land and the advance payments for services connected with the use of the apartment,
- to carry out the billing of services,
- deposit documents on the HOA in the collection of deeds,
- archiving the minutes of the meetings of the assembly,
- other specific obligations arising from the Civil Code and other special laws for the statutory body in the activities of house and land management.
Term of office
Where the statutes do not specify the length of the term of office, the term of office shall be five years. After (or just before) the expiry of the term of office of the committee, a new committee must be elected.
In practice, we encounter cases where this unfortunately does not happen and new elections are not held. However, this is a time bomb that can damage the JVU. We also recommend that minutes of meetings are carefully prepared and shared with all members.
Inactivity of committee members
What can be done if the SVJ committee fails or refuses to carry out the provisions that are set out in the SVJ bylaws or fails or refuses to carry out the tasks imposed on it at the owners’ meeting and recorded in the minutes of the meeting? Typically, the owners’ rights can be enforced by filing a lawsuit in court. If the community committee’s inaction causes damage, damages may also be sought in court. We always recommend contacting a lawyer in such a situation.
Community association without a committee
We have outlined above how to proceed in the case where the court has not appointed a committee. What about the right to sign deeds in such a case? In such a case, the temporary guardian has this. However, it is not that simple, again the court must intervene. We recommend that such a situation be dealt with promptly by an attorney.
Other optional bodies
The most frequently established non-compulsory body is the supervisory authority. This may be collective, in which case it will be a control commission. This should be a minimum of three members. The supervisory body may also be single-member. It would then be, for example, an auditor.
The scope and activities of all optional bodies must be specified in the statutes.