The COVID 19 pandemic has placed severe limitations on the functioning of not only the individual’s life but also businesses, companies and even strata corporations. Legally, strata corporations are obliged to hold an Annual General Meeting (“AGM”) once in each year provided that no more than 15 months shall elapse between the date of one AGM and the next AGM.

Upon the enactment on the 16^th March, 2020 of the first Disaster Risk Management (Enforcement Measures) Order, 2020 gatherings in any public place was limited to 20 persons at any time. This number was reduced to 10 by virtue of the Disaster Risk Management (Enforcement Measures) (No. 2) Order 2020 issued on the 24^th March 2020. These measures are to guard against or mitigate the threat or effects of the COVID-18 and its possible transmission which is commendable but for many strata corporations the practical effect has been to prevent the business of the strata from being carried out particularly those conducted at an AGM such as the election of a new Executive Committee and to present and adopt the accounts .

In Jamaica strata corporations are regulated by the Registration (Strata Titles) Act (“the Act”) and the by-laws. Unless the by-laws are made by the strata corporation the by-laws set out in the First and Second Schedules to the Act automatically govern the said strata corporation from the registration of the strata plan. Many strata corporations in Jamaica upon being registered, in particular the older strata corporations, have passed resolutions incorporating the by-laws in the First Schedule. These by-laws do not permit the holding of the AGM by electronic means such as zoom. Indeed, the by-laws in the First Schedule which deal with the voting requirements and quorum at an AGM expressly state that persons are to be physically present. It is curious that notwithstanding that a few years ago the law was amended to permit notices of meetings such as the AGM to be served by electronic mail , Parliament did not appear to address its mind to the holding of AGMs by electronic means.

The restriction on public gatherings and the omission of legislative provisions to allow AGMs to be held electronically has caused some concern amongst strata corporations and owners as to proceed to hold such a meeting in flagrant disregard of the law places resolutions passed at the AGM at risk of being subsequently declared invalid . On the other hand not to hold the AGM can result in the strata corporation being in breach of the same by-laws in the First Schedule to the Act because the AGM is not being held within the prescribed time period. Some strata corporations have tried to get around the restriction by for example having 10 persons, alone being physically present at the strata location armed with a sufficient number of proxies of the persons entitled to vote, but practically speaking, they have invariably not received sufficient amount of proxies and therefore the meeting has had to be adjourned.

Given the experience of COVID we should expect new strata corporations upon registration to ensure that its by-laws now include provisions to permit AGM’s to be held electronically. Older strata corporations that have incorporated the by-laws in the First Schedule also need to give some consideration to amending their respective by-laws to allow the holding of AGM’s by electronic means .