Atamarie
From our perspective the mandate for this current work on the BC Rules is
securing bank approval.
Minute 2 from last week's meeting reads "*We support simplifying the body corp rules to meet the requirements of the banks". All green..*(Note: bold is ours)
And, as per Jan's draft notes - "*A working group will meet at Min’s on Sunday 17 January at 2.30pm to approve the necessary changes to the Body Corp rules before they are sent off to our lawyer."..*(Note: the bold is ours).
We understood that achieving such necessary changes was the shareholders brief to the working group.
Further we believe that Toiora High Street Cohousing Membership Agreement Version 4.0 is the place for detailed discussions and agreements.
Our thanks for everyone's work on this.
Miriam and Donald
On Thu, Jan 21, 2021 at 12:33 PM Maria Callau maria@sur-architecture.com wrote:
Hi all,
From what I understood, Min and Frances were given the task to simplify the rules to satisfy the banks.
We had a very long meeting on Sunday and several emails after that... Now a meeting is suggested for tonight. Min can't make it to this meeting and I am not sure if Frances can...
I wasn't part of the group that was given this task and attended Sunday's meeting to support the process/discussion as Min suggested I could come around... I am not sure what process we are following...
Maybe Frances and Min can guide us through the next steps needed... (?)
Kind Regards,
*Maria Callau* 0211847490
*SUR *Architecture Limited www.sur-architecture.com
On Wed, Jan 20, 2021 at 10:53 PM Catherine Spencer cmspencer.nz@zoho.com wrote:
Hi all,
The directors are meeting tomorrow evening at 7.30 at Anne’s. I suggest anyone who wishes to discuss this further and is able to come along or zoom in at the usual zoom address at 8pm do so. Please indicate if you are coming, by reply all.
Many thanks, Catherine
On 20/01/2021, at 7:27 PM, Y Lee yblees685@gmail.com wrote:
Point by point... in red
On Wed, 20 Jan 2021 at 18:46, Alex King alex@king.net.nz wrote:
I note Stephen says "All the decisions needing to be made are for the Group to make, not me." I feel that he's just being diplomatic, because per your and Anne's emails, we are basically doing everything SEdge has even remotely suggested. (yes, I am feeling grumpy about this)
*Cohousing Membership and rules*
He also says "the sale & purchase agreement will contain a clause binding the new purchaser to enter into the cohousing agreement" Agree
I note that Earthsong BC rules require signing up to their co-housing rules indirectly, via the following wording requiring membership:
1.1 Definitions: "Earthsong Eco-Neighbourhood" means the unincorporated society of Earthsong owners, residents and associates which meets regularly and manages the day to day affairs of the Earthsong community.
2.27 Duties of Proprietors: Become and remain a member of Earthsong Eco-Neighbourhood.
I note the current draft (Body Corp Rules -ToioraHS-v9.3 2021-Anne) we require signing up to our cohousing rules as follows:
3f Owner's Obligations: signing up to, and complying with the Toiora High Street Membership Agreement. Where the owner is a Territorial Authority or Social Housing Provider, an individual shall be appointed to act as a contact or representative.
(the requirement for tenants to sign the cohousing agreement has been removed)
So we should decide if we want to require membership in the BC rules (I call this the belt and braces approach). If we do, we should decide whether we want to do it the Earthsong way "you must be a member", or the way we have it currently "you must sign up to the rules." Semantics. There is no difference since signing the agreement = becoming a member. I prefer to keep the requirement to sign up to the Agreement (become a member), but if this has to go, then say it clearly and I will take it out of the document. If there is an option to keep, then please leave it alone.
I'm in favour of not requiring it in the BC rules, instead we all sign up anyway and future sales are covered by sale and purchase agreements. But if we want to keep it, the way Earthsong have done it is that their Membership Agreement is more "hidden." The BC rules don't mention their Membership Agreement. Sooner or later with our agreement, a bank will ask to see the cohousing agreement. Yes they will. But we just need to get past this first round of Mortgages. Later on, we should have a precedent of receiving bank mortgages, and a lending history. Also, My impression is that Warren intends to keep the Toiora Agreement fairly simple, and leave alot of the operational matters with various working groups to organise / document separately. For example, there will be a Maintenance group, but the maintenance working bee process would not be written in the Toiora Agreement. This means we should have a Toiora Agreement that is fairly non-confronting for the banks to see.
*Voting and decision-making of the Body Corporate*
The Earthsong BC rules say:
9.9 Powers of Body Corporate: The Body Corporate may from time to time and by a majority resolution amend these rules or make or promulgate additional rules, regulations and bylaws for the use and enjoyment of common property or any part thereof. All proprietors and their invitees shall comply with any such additional rules, regulations and bylaws.
10 VOTING PROCESS (INCORPORATING GROUP DECISION MAKING PROCESS): All matters to be determined by the Body Corporate at a general meeting shall, in the first instance, be determined by the Group Decision Making Process. If consensus is not reached on an issue then that issue shall be resolved by resolution in accordance with sections 97, 98 and 101 of the Act.
So in other words, they make decisions at BC meetings by majority vote, but they go through the group prior to the BC meeting, with the BC vote being a formality. If consensus can't be reached, then the matter goes to a (normally 75%) majority vote as per the act. I disagree. "in the first instance" Earthsong uses the Group Decision Making Process. And if consensus is not reached, THEN they go to the Act. This is exactly how our process works, because I copied it.
In this draft of the BC rules, we have no mention of decision making at all, which means decisions are made by vote as proscribed by the act. I quite liked the idea we came up with, but it does contravene what Stephen was asking for. I think we should get a legal opinion on it, because I don't like having things go to a vote at the BC meeting. I also note as Min says, non-owners don't get any vote in the BC meetings (or even the right to attend.) This is somewhat moderated I believe by the fact that all owners will be Toiora members, and our practice will be to discuss items at group meetings first. And we may be able to request/require members to vote at BC meetings in accordance with group wishes, again I believe we need legal advice on this. I think if you don's specifically write into the rules the Decision Making Process is to be used, then voting per Act automatically applies. How are you going to require anyone to vote in accordance with Group wishes? We sometimes can't even do this in Group meetings with full Group Decision Making going on.
*Naming of things*
Personally I object to renaming the "Toiora Cohousing Membership Agreement" to "Toiora Membership Agreement," and think that's beyond the scope we were set. May need more discussion. I thought we had to take out the word "Cohousing". What would you prefer to call it?
Thanks, Alex
Min
On 19/01/21 11:12 pm, Y Lee wrote:
HI Anne In v9.3, I have changed owner's obligations 3f) to "*signing up to, and complying with the Toiora High Street Membership Agreement.*". *So there is no need to use "Toiora High Street NEIGHBOURHOOD" at all. *
22b (leasing a private unit) is removed. *Removing reference to any Group decision making means tenants making decisions for the Body Corp cannot exist.*
In Schedule 1C - Decision Making Process - "When making decisions, the Toiroa High St Neighbourhood process will be used." If we change to this, then 1C can be removed, instead the definitions will say "*Toiora Decision Making Process **is the means by which the Body Corporate will make decisions under these Rules*"
26f (powers of the body corporate) now says"from time to time amend these Rules or make additional Rules, using the Toiora Decision Making Process"
Changes made to version 9.3-Anne attached. (this is a third version with Anne's suggested changes made) I'll leave it to the rest of you which one to give Stephen Edge Regards Min
On Tue, 19 Jan 2021 at 22:04, Anne Thomson e.anne.thomson@gmail.com wrote:
Hi all,
Frances has suggested what I had already done, because I was frustrated by the feeling that we all had our own ideas of what Stephen Edge really meant, and it would be much quicker to ask him. I sent the version Min produced on Sunday night, but taking out 'group' in Group Decision Making.
Stephen's response was : "Thanks for sending this through but just to be clear I’m not directing anything here. All the decisions needing to be made are for the Group to make, not me. What I’m trying to do is to simplify things from a lender’s point of view and therefore reduce the hurdles people have been encountering with banks.
From a lender’s point of view *ALL* references in the BC rules to “decision making”, “cohousing”, “coloured cards”, etc need to be deleted – everything needs to be completely standard, no exceptions whatsoever.
To preserve the past 7 years work and to maintain the cohousing neighbourhood the cohousing agreement becomes the pivotal document that everyone signs. When a Group member eventually sells their unit, the sale & purchase agreement will contain a clause binding the new purchaser to enter into the cohousing agreement and also agreeing to use the same clause in their sale & purchase agreement when they eventually sell. This is what Earthsong have been doing and it seems logical to me people in the UCOL Group will be happy to do this.
I guess there’s always a risk someone will go rogue and not include the “cohousing agreement clause” in their unit sale & purchase agreement but to my way of thinking this is probably a low risk, i.e. if the community is happy and thriving people will want to be a part of it – both sellers and buyers."
A possible way forward which I want to run past Stephen Edge:
We take out all references to the group (as Alex suggested) replacing them with 'Body Corp'.
In 3f (owners obligations) we say "becoming a member of Toiora High St Neighbourhood"
In 22b (leasing a private unit) we say "ensure that any tenant becomes a member of Toiora High St Neighbourhood"
[These are both based on Earthsong body corprules]
In 26f (powers of the body corporate) say "from time to time amend these Rules or make additional Rules, using the Toiora High St Neighbourhood process".
In Schedule 1C - Decision Making Process - "When making decisions, the Toiroa High St Neighbourhood process will be used."
I will send these suggestions to Stephen in response to his email.
Stephen has said that all reference to decision-making should be removed - I am going to ask Simon Milne (or since he is on holiday, Chris Hawker who is his designated alternative) whether, if no decision making process is specified, there is an automatic default to the voting set out in the Unit Titles Regulations 2011 ( https://www.legislation.govt.nz/regulation/public/2011/0122/latest/DLM369570...) This we do not want.
There has been a suggestion that we meet again one evening this week. I can do that - and I would very much like Stephen Edge to be able to phone in to that meeting if at all possible, because otherwise we will continue to go round in circles each with our own idea of what he means.
Sorry (a bit) for acting unilaterally. We are not following our process at all at the moment, which is not helping. And email, as many people have said, is pretty useless for this sort of discussion. Anne
On Tue, Jan 19, 2021 at 8:25 PM Sandy Ross sfross@xtra.co.nz wrote:
I am sorry to come into this late. We have had families arriving since Monday morning and that has taken precedence.
Going back to Stephen Edge’s email and his request that we remove the covenant and simplify the BC rules so that they become more standard. He explains this as taking out all reference to decision making (group decision making?) and cohousing. We decided to keep a reference to cohousing in our Vision Schedule A and our process of decision making has been greatly simplified in Schedule C but group decision making still appears in our document: v 9.2
Perhaps we should send this version through to Stephen Edge, asking him specifically if we have simplified enough in the area of *decision making* to appease the banks. If we get a No, we should work on further simplification.
Regards,
Frances
On 19/01/2021, at 12:51 PM, Y Lee yblees685@gmail.com wrote:
Alex, occupiers should been removed completely from the definition of owners in v9.3. Sorry i missed that. The rules will only apply to owners, unless stated otherwise in the body text.
I don't have time to meet again until the weekend. Min
On Tue, 19 Jan 2021, 12:17 pm Alex King, alex@king.net.nz wrote:
We didn't reach agreement at our meeting. (We did reach agreement on some points, such as removing the word consensus, and simplifying the decision making procedure.) What happened was that I raised a query about the concept of the group and whether it was consistent with what Steven was asking us to to. The comments to that were, 1. It's too difficult to remove, and 2. Lets put it aside while we go through the whole document, so we are aware of everywhere it occurs.
By the time we got to the end of the document some people had already left and others had to go, and the meeting was concluded without addressing the point in substance.
So subsequent to the meeting, I went through the draft Min sent out with the changes we had agreed, and identified the work that would be required should we agree to take the group concept out of the BC rules.
Agreement having not yet been reached, we have not yet completed the task we were set.
I am happy to either continue by email or to re-convene a meeting.
Having done the further work on it, I think we can address higher level questions like:
- Do we need the BC rules to require signing the Cohousing
Membership Agreement, and will that be acceptable to the banks, or is there another way? 2. Do we agree that removing the concept of the group is necessary for appeasing the banks, and is it a great hardship for us to do it? 3. Of the different versions we have, which do we want to send through? If we send one through where we have identified items we're not sure will be acceptable to the bank, should we identify those and ask for a specific response? Or just send it without commentary and see what Stephen reacts to?
My own opinion is that we should not be trying to "get things past" Stephen. He is on our side, we should be quite open with him. The reason is that it's not Stephen we need to get to agree with it, it is the retail arm of Kiwibank and the other banks, and their lawyers. So while we might be able to sneak something past Stephen which still has cohousing in camouflage, it won't do us any good if mortgages are refused down the line.
My own opinion is also that we should be able to retain cohousing and the group in Appendix 1 including the word "Cohousing", and we could put an expectation of signing the Cohousing Membership Agreement there as well. This is because it won't be legally binding there, and so I would be willing to push the banks hard that they should be able to accept that. It means we aren't hiding who we truly are despite the banks not wanting to put any obligations on purchasers in a mortgagee sale.
Why do we need to be finished today? Have we committed to a deadline for supplying it to someone? I am frustrated when we do a rush job of things, it only comes back to bite us later. I prefer to give things the consideration they need, especially important documents like the BC rules.
By the way, I don't understand why, when we say owners we exclude occupiers (since we still have the wording:
“*Owner*” means the person(s) registered as owner of the unit, and for the application of these Rules also includes occupiers?
(Things that are being considered to be changed from "the group" to "owners" are very few and relate to building related things like putting aerials on the exterior of buildings. These could be dealt with by delegation to a committee to avoid having to have a special BC meeting. And if people really want, we could have a clause in the Cohousing Membership Agreement saying that members who are on the BC committee will follow any directions of the groupin the exercise of those powers, like we do with directors currently.)
I also disagree that the Cohousing Membership Agreement doesn't have legal standing. It does. It doesn't have the same remedies and enforcement options as the BC rules do (e.g. the tenancy tribunal,) but it is a legal contract by my understanding.
If we accept what I think the banks are telling us, which is that they don't want membership of couhousing to be made compulsory in the BC rules, then we _may_ want to get our lawyer to look at the Cohousing Membership Agreement, and give us advice on the legal enforcability of it. (Or we may want to just trust people to stick to rules they have agreed to.)
I would be happy to continue our meeting on Thursday evening, when the directors meeting is scheduled. I'm not sure what else of urgency there is on the directors agenda. Although this would need to be agreed also by Anne and Catherine.
Thanks, Alex On 19/01/21 9:29 am, bluefrog wrote:
Not yet please. I need to do the final changes to v9.2 first need to change to Decision Making Process. Will be ready tonight Min
-------- Original message -------- From: Anne Thomson e.anne.thomson@gmail.com e.anne.thomson@gmail.com Date: 19/01/2021 9:26 am (GMT+12:00) To: Maria Callau maria@sur-architecture.com maria@sur-architecture.com Cc: Yu-min Lee yblees685@gmail.com yblees685@gmail.com, Catherine Spencer cmspencer.nz@zoho.com cmspencer.nz@zoho.com, sara ferreirasara@yahoo.com ferreirasara@yahoo.com, alex@king.net.nz, Ucol Sue taysue70@gmail.com taysue70@gmail.com, Ucol Frances Sandy Ross sfross@xtra.co.nz sfross@xtra.co.nz Subject: Re: Minimal Version of BC Rules v9.3-minimal
I will do this
Qnne
On Tue, 19 Jan 2021, 9:20 am Maria Callau, < maria@sur-architecture.com> wrote:
> we need to do this today. > > Maria Callau > 0211847490 > SUR Architecture Limited > > Sent from my iPad > > > On 19/01/2021, at 7:22 AM, Y Lee yblees@orcon.net.nz wrote: > > Not true Catherine > I read your comments to Alex's email as well > 3f about owners signing the Toiora Agreement has been left in, for > example > > *The rest of what was removed is what is required to be consistent > with removing "Group" from the document* > It certainly makes the BC rules more "standard" by focusing > primarily on owner's rights. > > *I would suggest we retain the firearms policy in both Documents* > I will edit *v 9.2* to change "Group Decision Making Process" to > "Decision Making Process", but otherwise retain "Group. > > We will have two versions. *Give v9.2 to Stephen first* > (containing all other references to Group) > If he say's more needs to be taken out, then give him v 9.3-minimal > > I think we need to do the above this week. > > Regards > Min > > On 18/01/2021 10:22 pm, Catherine Spencer wrote: > > Hi all, > > This version is not acceptable to me and takes only into account Alex’s email. > > I find this process really distressing and that we are now trying to discuss things by email, which favours those who have time to write, the earlier the better and those who have access to the facilities to do so. With email we “push our own barrow” rather than listen and modify our ideas and find ways forward together. As such it is not inclusive, nor does it create those inspired solutions we were so good at making at the beginning of the project. > > I think we need to reconvene a face to face meeting or at least a zoom, and I am happy to share my zoom with anyone, who does not have access. > > Nonetheless I acknowledge the extra work you have put in Min to produce this version, when I know you are stressed and pushed for time. > > Catherine > > > > On 18/01/2021, at 9:58 PM, Y Lee yblees685@gmail.com yblees685@gmail.com wrote: > > This is the absolute minimal version, with everything taken out as Alex listed. > Yellow is from Alex's "remove" list > Blue is what I had to change to make the document consistent > > Effect: > The minimal body corp essentially allocates all decision making rights to the owners (body corp). Non-owner occupiers have decision making roles only as far as owners allow / do not object. > > Note: the Toiora (cohousing) Agreement has no backing from government legislation the way Body Corp rules do. If we are to enforce cohousing, then the Toiora Sale and Purchase Agreement will have to have some REALLY BIG TEETH - more than normal S&P agreements. > > Min > <Body Corp Rules -ToioraHS-v9.3 2021-Minimal.docx> > > >
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