The Lockdown, and its effect on your buildings upcoming AGM.

Restrictions and how they affect your upcoming AGM

While organising your apartment building or resorts Annual General Meeting (AGM) of owners is normally a challenge to most committees under best of circumstances, due to the government lockdown of Cyprus there are even more challenges for your committee to overcome.

Effects of not holding your AGM as planned.

​Firstly, and most importantly, organising an annual general meeting of owners is an important legal obligation of the management committee.

Under the immovable property law governing shared property, there are many rules on how this meeting must be held including a strict requirement that there must not be more than 14 months in between two General Meetings of Owners.

Reading these regulations it is very clear that if you were to postpone your meeting to later in the year and this date was beyond the 14-month limit, your management committee would be in breach of this law. Of course, you would likely argue force majeure, however, I will cover why I don’t think its a good idea to rely on this argument later in this article.

This requirement for the frequency of the annual general meeting is there for a reason, these meetings are important.

At these meetings

• The financial annual accounts are presented and discussed
• The legal representatives of owners are elected (the management committee)
• Important discussions and decisions are made
  • Dealing with debtors & defaulting units
  • Scheduling and frequency of direct services such as cleaning/gardening etc
  • Maintenance projects
  • Hiring/firing vendors 
  • Appointment of new property managers

During times of crisis like now, it may be even more important than ever for owners to discuss current challenges and plans on how to resolve them.

With this current crisis, there are even more challenges to overcome, and most people would agree that it would be beneficial for unit owners to be more involved in the discussion of these challenges and ways to overcome them rather than be kept in the dark and all decisions be made by the committee without consultation.

Things you may need to discuss

• Adjustment to communal fees
• Alterations to cleaning schedules
• Allocation / Reallocation of communal funds
• Postponement of large expenditure projects
• Advice to residents on how to help reduce their risk of exposure in a shared building

Being better informed in the challenges and more involved in the decisions on how to face them, owners will likely be more understanding and willing to accept any changes made. 

Of course, there will always be a few difficult owners, who will object to all reasonable propositions and still feel this is the best opportunity to air past grievances.  But these owners while louder than most are usually in the overall minority, even with this disruption holding this meeting will still benefit the majority of owners and residents. 

The potential negative effects on communal fee collection rates.

By delaying the AGM beyond the legal deadline, you give three powerful excuses to any debtor for continued non-payment.

• The AGM was not organised within the deadline which is a breach of the legal obligation of the committee
• The committee’s legitimacy is questionable as there were no elections held
• The annual accounts were not presented and accepted by unit owners.

You can argue with them until you are blue in the face how this was unavoidable, but they will simply keep repeating this reason for non-payment. 

Legal threats will carry less weight as they feel more confident, they have a strong argument for the committee’s legitimacy and authority to collect the communal fund due to these breaches of their obligations. 

The majority of your defence will come down to ‘Situations outside of your control’ or force majeure.

The ‘Force Majeure’ argument.

Many will point out that these are unprecedented circumstances outside of the committee’s control, AKA force majeure. However, I do not feel comfortable relying on this argument.

In my experience, anything that can be argued for can be argued against.

Whenever possible, it’s always advisable to remove any potential point of debate when dealing with debtors and the court system. 

A likely scenario:

A unit owner stops payments and argues that they stopped payment as the accounts were not presented, the AGM was not held within the deadline or the committee was not elected as required in the regulations. 

Rather than being fully confident in your fulfilment of all the committee’s legal obligations you need to argue why you were unable to meet them. 

They can then argue with the benefit of hindsight different options you could have taken to fulfil these obligations. 

They won't budge from their argument, and so you end up going through years of expensive legal action, time and stress.

When you get to court, the judge may agree that you were prevented in fulfilling your obligations through no fault of your own, or could feel that there were other reasonable options available which you could have used and therefore cannot argue Force Majeure’. While lawyers can and will debate the merits of each argument, there is no way of being certain on either argument winning until cases are heard which will be years down the line.

Can you organise your AGM electronically via Skype, Whatsapp or similar?

This is the most common questions I am currently being asked, and the answer is yes, and no.

To explain this, the regulations which govern how your meeting must be held were written before the internet existed, so there is no provision for electronic attendance or voting. 

The key requirements for holding your AGM.

• Must be a physical location for the meeting, owners must be notified of the date, time and location with 7 days’ notice.
• There must be a quorum at the meeting for it to proceed (you can find more about quorum in this article)
• To be counted in the quorum and any votes a unit owner must either be in attendance or appoint a proxy who will physically be at the meeting to represent them.
  • This proxy can be given specific instructions on how to vote.
  • One person can hold multiple proxies
• Accounts must be presented
• The committee must be elected

If you look at the key requirements above, you may see there is a loophole which would allow an electronic meeting to take place.

Owners who are unable to attend the meeting in person can appoint a proxy to attend in their place, and they can give that proxy specific instructions such as “Only vote as I instruct via the meetings live video link”.

Steps to host your meeting online.

To hold a meeting this way you simply follow the below steps.

• Appoint a single individual to act as the meeting host
  • This meets the current lockdown rules and bans on public gatherings.
• Set the meeting location to this hosts desired location
• Every unit who wants to attend via the live video link must complete a proxy form appointing this designated meeting host as their proxy with instructions to vote as that unit owner instructs via the live video link

With these extra steps completed, you can proceed with the rest of your meeting as normal.

A few key points on this.

• Pay close attention to the quorum.
  • Don’t do all of this, only to fail because you did not follow the steps surrounding quorum.  Remember not having 50% does not prevent you from having a meeting, you just need to take extra steps set out in the law to allow the meeting to proceed.
• Keep a strong paper trail.
• Make sure the meeting host has a reliable and high-speed internet connection
• Use a good quality software
  • I generally suggest avoiding using basic software like skype or WhatsApp as the functionality is limited and there can be reliability issues.
  • I suggest using professional software that also allows people to dial in by telephone if they struggle with IT
  • As a bonus professional software usually allows recording of the meeting, sharing of documents, organising voting etc.

Possible changes to the regulations.

There are rumours that the government will bring in emergency legislation that will update the laws allowing electronic attendance at important meetings like AGM’s of companies, and this would likely apply to communal property as the legislation surrounding the meetings is very similar.

However, it is early days, so even if this is passed I still suggest in following the below steps to help meet the quorum and voting requirements of the existing law.

What if you need assistance in organising this meeting.