|
back to previous amendments
| (78) | Subject to the provisions of the Companies Act, the secretary shall be appointed by the directors for such terms, at such remuneration and upon such conditions as they may think fit; and any secretary so appointed may be removed by them. |
| (79) | The directors shall cause minutes to be made in books kept for the purpose— |
| (a) | of all appointments of officers made by the directors or by the developer; and |
| (b) | of all proceedings at meetings of the Commonhold Association, of members and of the directors, and of committees, including the names of the persons present at each such meeting. |
| (80) | The seal shall only be used by the authority of the directors or of a committee authorised by the directors. The directors may determine who shall sign any instrument to which the seal is affixed and unless otherwise so determined it shall be signed by a director and by the secretary or by a second director. |
| | NO DISTRIBUTION OF PROFITS |
| (81) | Save in accordance with a termination statement or in a winding up, the Commonhold Association shall not make any distribution to its members of its profits or assets, whether in cash or otherwise. |
| (82) | If on a winding up of the Commonhold Association there remains any surplus after the satisfaction of all its debts and liabilities, and after compliance with the provisions of any termination statement in accordance with the 2001 Act, the surplus shall be paid to or distributed among the members of the Commonhold Association rateably in accordance with the percentages allocated to their Commonhold Units in the Commonhold Community Statement. |
| | INSPECTION AND COPYING OF BOOKS AND RECORDS |
| (83) | In addition to, and without derogation from, any right conferred by statute or by the Commonhold Community Statement, any member shall have the right, on reasonable notice, at such time and place as shall be convenient to the Commonhold Association, to inspect any book, minute, document or accounting record of the Commonhold Association, and to be provided with a copy of the same upon payment of any reasonable charge for copying. Such rights shall be subject to any resolution of the Commonhold Association in general meeting, and, in the case of any book, minute, document or accounting record which the directors reasonably consider contains confidential material the disclosure of which would be contrary to the interests of the Commonhold Association, to any reasonable conditions or redactions which the directors may impose or make. |
| (84) | Any notice to be given to or by any person pursuant to the articles shall be in writing or shall be given using electronic communications to an address for the time being notified for that purpose to the person giving the notice. A notice calling a meeting of the directors need not be in writing or given using electronic communications if there is insufficient time to give such notice having regard to the urgency of the business to be conducted thereat. |
| (85) | The Commonhold Association may give any notice to a member either personally or by sending it by first class post in a prepaid envelope addressed to the member at his registered address or by leaving it at that address or by giving it using electronic communications in accordance with any of the methods described in subsections (4A)-(4D) of section 369 of the Companies Act. A member whose registered address is not within the United Kingdom and who gives to the Commonhold Association an address within the United Kingdom at which notices may be given to him, or an address to which notices may be sent by electronic communications, shall be entitled to have notices given to him at that address, but otherwise no such member shall be entitled to receive any notice from the Commonhold Association. |
| (86) | A member present, either in person or by proxy, at any meeting of the Commonhold Association shall be deemed to have received notice of the meeting and, where requisite, of the purposes for which it was called. |
| (87) | Proof that an envelope containing a notice was properly addressed, prepaid and posted by first class post shall be conclusive evidence that the notice was given. Proof that a notice contained in an electronic communication was sent in accordance with guidance issued by the Institute of Chartered Secretaries and Administrators shall be conclusive evidence that the notice was given. A notice sent by first class post shall be deemed to be given at the expiration of 48 hours after the envelope containing it was posted. A notice contained in an electronic communication sent in accordance with section 369(4A) of the Companies Act shall be deemed to be given at the expiration of 48 hours after the time it was sent. A notice contained in an electronic communication given in accordance with section 369(4B) of the Companies Act shall be deemed to be given when treated as having been so given in accordance with that subsection. |
| (88) | Subject to the provisions of the Companies Act but without prejudice to any indemnity to which a director may otherwise be entitled, every director or other officer or auditor of the Commonhold Association shall be indemnified out of the assets of the Commonhold Association against any liability incurred by him in defending any proceedings, whether civil or criminal, in which judgment is given in his favour or in which he is acquitted or in connection with any application in which relief is granted to him by the court from liability for negligence, default, breach of duty or breach of trust in relation to the affairs of the Commonhold Association. |
| | Names and Addresses of Members: ......."" |
| Page 5, line 45, at end insert— |
| "(3) | A lease shall not be extinguished by virtue of section 7(3)(d) or 9(3)(f) unless either— |
| (a) | the lessee first consents in writing, or |
| (b) | fair compensation is paid to the lessee for such extinguishment. |
| (4) | The county court shall have jurisdiction to determine any matter arising under subsection (3), whatever the amount of the compensation involved." |
| | THE LORD WILLIAMS OF ELVEL
THE EARL OF CAITHNESS |
| Page 6, line 12, leave out "may" and insert "must" |
| Page 6, line 12, at end insert "and must have regard to section 24(2)" |
| Page 6, line 14, leave out "may" and insert "must" |
| Page 6, line 15, leave out "may" and insert "must" |
| | The Lord Kingsland gives notice of his intention to oppose the Question that Clause 17 stand part of the Bill. |
| Page 9, line 34, leave out subsections (3) to (6) |
| Page 10, line 5, leave out subsections (1) and (2) and insert— |
| "(1) | An instrument or agreement which creates an interest or charge in or over— |
| (a) | part only of a commonhold unit, or |
| (b) | part only if an interest in a commonhold unit, |
| | shall have effect subject to any provision of the commonhold community statement." |
| | THE LORD WILLIAMS OF ELVEL
THE EARL OF CAITHNESS |
| Page 11, line 24, leave out from "means" to end of line 26 and insert "all structural parts of the commonhold and those areas used in common" |
| Page 11, line 26, at end insert— |
| "( ) | The structure will include— |
| (a) | main walls (but not the internal plaster surfaces thereof), |
| (b) | floors (but not the timber or other surfaces thereof or plaster or other surfaces to any ceiling below), |
| (d) | roads, paths and pavements, and |
| (e) | such other areas not forming part of the commonhold unit." |
| Page 12, line 23, at end insert— |
| "(6) | A charge shall not be extinguished under subsection (3) or (4) unless either— |
| (a) | the chargee first consents in writing, |
| (b) | fair compensation is paid to the chargee for such extinguishment, or |
| (c) | adequate substituted security is provided for the chargee by way of a charge, or charges, on one or more of the commonhold units in the commonhold. |
| (7) | The county court shall have jurisdiction to determine any matter arising under subsection (6) whatever the amount or value of the compensation or security involved." |
| Page 12, line 29, leave out paragraph (b) and insert— |
| "(b) | by a majority of not less than 80 per cent. of the members of the commonhold association." |
| Page 13, line 15, leave out "prescribed" |
| Page 13, line 15, at end insert "prescribed in Schedule (Commonhold Community Statement)." |
| Page 14, line 3, leave out "not" |
| Page 14, line 12, at end insert— |
| "(10) | A commonhold community statement shall specify, in relation to each commonhold unit specified in it, the vote or votes attributed to the unit-holder of that commonhold unit ("the unit voting rights") expressed both— |
| (b) | as a percentage of the total of all the unit voting rights, accurate to three decimal places, and so that the said total adds up to 100 per cent. |
| (11) | A commonhold community statement may make provision for variation of the unit voting rights, but so that the requirements of the last foregoing subsection as to how the unit voting rights are expressed shall always be complied with. |
| (12) | The provisions of the commonhold community statement and the memorandum and articles of association of the commonhold association shall always be consistent with each other. |
| (13) | References in this Part to a percentage of the members of a commonhold association shall unless the context otherwise requires be construed as meaning a percentage of the total (namely 100 per cent.) of the unit voting rights of all the unit-holders of commonhold units within the commonhold." |
| Insert the following new Clause— |
| (1) | Regulations under this section shall require a Commonhold Community Statement to make provision about how it can be amended. |
| (2) | Such provision shall be supplementary to the form prescribed in Schedule (Commonhold Community Statement)." |
| | The Lord Kingsland gives notice of his intention to oppose the Question that Clause 31 stand part of the Bill. |
| | The Lord Kingsland gives notice of his intention to oppose the Question that Clause 32 stand part of the Bill. |
| Page 15, line 24, leave out "is" and insert "shall be" |
| Page 15, line 24, leave out "guarantee" and insert "shares" |
| Page 15, line 26, leave out "that an" and insert "the principal" |
| Page 15, line 29, leave out paragraph (b) |
| Page 15, line 30, at end insert— |
| "( ) | The memorandum and articles of association of a commonhold association shall take the form set out in Schedule (Memorandum and Articles of a Commonhold Association)." |
| Page 15, line 31, after "makes" insert "further" |
| Page 15, line 32, leave out subsection (2) and insert— |
| "(2) | The following provisions of the Companies Act 1985 (c.6) shall not apply to a commonhold association— |
| (a) | sections 2(7) and 3 (memorandum), and |
| (b) | section 8 (articles of association). |
| (3) | The memorandum of association of a commonhold association shall be in the form set out in Part 1 of Schedule 3 hereto or as near thereto as circumstances admit. |
| (4) | No application may be made under paragraph 3(2) to Schedule 3 for the registration of a memorandum altered by special resolution in accordance with section 4(1) of the Companies Act 1985 (objects) unless— |
| (a) | the period during which an application for cancellation of the alteration may be made under section 5(1) of that Act has expired without an application being made, or |
| (b) | any application made under that section has been withdrawn or the alteration has been confirmed by the court under that section. |
| (5) | A commonhold association may adopt all or any of the regulations contained in Part 2 of Schedule 3 hereto and if articles are not registered or, if articles are registered, insofar as those articles do not exclude or modify the regulations contained in that part of the Schedule or are inconsistent with those regulations then those regulations shall be the regulations of the company. |
| (6) | A commonhold association shall file with the Registrar byelaws (the "commonhold community statement") providing for— |
| (a) | the rights and duties of the commonhold association, and |
| (b) | the rights and duties of the unit holders. |
| (7) | In subsection (6)(a) and (b) "duties" include, in particular, a duty— |
| (e) | to refrain from entering into transactions of a specified kind in relation to a commonhold unit; |
| (f) | to refrain from using the whole or part of a commonhold unit for a specified purpose or for anything other than a specified purpose; |
| (g) | to refrain from undertaking works (including alterations) of a specified kind; |
| (h) | to refrain from causing nuisance or annoyance; |
| (i) | to refrain from specified behaviour; |
| (j) | to indemnify the commonhold association or a unit-holder in respect of costs arising from the breach of a statutory requirement. |
| (8) | A duty conferred by a community statement on a commonhold association or a unit-holder shall not require any other formality. |
| (9) | Provision made by a community statement shall be of no effect to the extent that it is inconsistent with the memorandum or articles of association of the commonhold association. |
| (10) | A commonhold association may amend— |
| (a) | its memorandum of association; |
| (b) | its articles of association; |
| (c) | its community statement, |
| | at any time, and shall file a copy of the document as amended with the Registrar. |
| (11) | The foregoing provisions of this section shall apply to the articles of association and community statement as they do to the unamended articles of association and community statement. |
| (12) | During the period beginning with incorporation of a commonhold association and ending when land specified in its memorandum becomes commonhold land, the subscribers (or subscriber) to the memorandum shall be the sole members (or member) of the association. |
| (13) | During a transitional period— |
| (a) | the subscribers (or subscriber) to the memorandum shall continue to be members (or member) of the association; and |
| (b) | a person who for the time being is the developer in respect of all or part of the commonhold is entitled to be entered in the register of members of the association. |
| (14) | A commonhold association may not be a member of itself. |
| (15) | A person who is entitled to be entered in the register of members of a commonhold association becomes a member when the company registers him in pursuance of its duty under section 352 of the Companies Act 1985 (c.6) (duty to maintain register of members)." |
| Insert the following new Clause— |
| (1) | Regulations may make provision about the performance by a commonhold association of its duty under section 352 of the Companies Act 1985 (c.6) (duty to maintain register of members) where a person— |
| (a) | becomes entitled to be entered in the register by virtue of paragraphs 5 to 8, or |
| (b) | ceases to be a member by virtue of paragraph 12 or on resignation. |
| (2) | The regulations may in particular require entries in the register to be made within a specified period. |
| (3) | A period specified under subsection (2) may be expressed to begin from— |
| (a) | the date of a notification under section 15(3), |
| (b) | the date on which the directors of the commonhold association first become aware of a specified matter, or |
| (4) | A requirement by virtue of this section shall be treated as a requirement of section 352 for the purposes of section 352(5) (fines). |
| (5) | Regulations may provide— |
| (a) | that the Name by which a commonhold association is registered under the Companies Act 1985 (c.6) must satisfy specified requirements; and |
| (b) | that the name by which a company other than a commonhold association is registered may not include a specified word or expression." |
|
