Throughout the onset of the COVID_19 pandemic many persons found themselves utilizing virtual platforms to conduct meetings and to communicate in general. At some point during the pandemic physical gatherings were either completely banned by the government or restricted to very small numbers in order to mitigate the impact of this highly contagious virus.
These restrictions on physical gatherings left directors, institutions, and corporations such as Strata Corporations in precarious positions especially where the law specifically mandated in person meetings. The Registration (Strata Titles) Act “the Act” which is the legislation that governs stratas in Jamaica mandated strata corporations to hold annual general meetings (“AGMs”) according to their respective by-laws. The standard by-laws in the First Schedule of the Act which most strata corporations have adopted and adhered to, until or unless it is amended or varied by a resolution by at seventy-five percent of the proprietors, provided that annual general meetings were to be held once a year and that no business can be transacted at any general meeting unless a quorum of persons entitled to vote is present in person or by proxy at the time when the meeting proceeds to business.
Meetings such as AGMs are of fundamental importance to the planning, operating and governance of any strata development. It is at these meetings owners within a development come together to examine financials and address various concerns. The requirement outlined in the First Schedule of the by-laws posed a major issue during the pandemic as many owners were unable to be physically present in person or by proxy at these meetings due to restrictions on gatherings, travel bans or health factors. Owners grappled with the following questions: (i) whether their strata corporation could legally hold virtual AGMs or any other meeting; and (ii) whether any business or decisions made at virtual meetings would be considered binding and valid.
On the literal interpretation of the Act it was clear that virtual meetings were not contemplated. Numerous complaints were lodged with the Commission of Strata Corporations as many pressing matters were left unaddressed due to the fact that general meetings could not be held virtually. The Commission of Strata Corporations attempted to address this concern by issuing a Protocol which provided very detailed guidelines as to how virtual meetings could be conducted by Strata Corporations. While this initiative was welcomed by many strata corporations, there were a few proprietors who objected to the Commission’s authority to even issue such a Protocol which they believed was in direct contravention with the law.
The Commission of Strata Corporations turned to the Supreme Court of Jamaica to adjudicate on this issue. This matter came before the Court recently, and the Court was asked to make the following declarations:
That the words “present in person” as stipulated in the Act and any variation to it can be interpreted as appearing present in person by online video conference platform;
That use of online video conference application is an acceptable means of holding a general meeting in light of the prevailing restrictions on physical attendance to events currently;
That the use of online video conference application is practicable and allows proprietors access to see and hear proceedings, ask questions in such reasonable order and manner as the chairman may allow and to vote electronically similar to the traditional means of voting at a General meeting.
That notwithstanding the provisions of the Act any general meeting already facilitated by online video conference application is not negated merely by the fact that it was convened by online video conference application prior to this application for declaration and are valid.
That holding a General Meeting with a combination of persons physically present and appearing present in person by online video conference is also an acceptable means and will proceed in such reasonable order and manner as the chairman may allow The Court, in turn, made the above declarations save and except the declaration itemised at number 4. The judgement handed down assisted in the resolution of a serious issue faced by many strata corporations throughout Jamaica by allowing AGMs to be held virtually.
Natasha Rickards Baugh is a Partner at Myers, Fletcher and Gordon, and is a member of the firm’s Property Department. She may be contacted at natasha.rickards@mfg.com.jm or through the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.
