TENOA Constitution

Constitution adopted at AGM on 1st November 2017

CONSTITUTION of THE ELEMENT NEWHAVEN OWNERS’ ASSOCIATION  (“TENOA”)

Published on 21st August and amended on 19th September, 2017.

PROPOSED FOR ADOPTION AT THE TENOA AGM on 1ST November 2017,  at the David Lloyd Sports’ Centre, Newhaven.

NB This is the definitive version of the text on which members mandating a proxy to act on their behalf  must notify their voting intention by 24th October 2017.

1 Rutland Court, Edinburgh, EH3 8EY

1. Name and Address

The name of the association shall be The Element Newhaven Owners’ Association, located at Western Harbour, Newhaven, Mid-Lothian, Scotland, EH6 hereinafter referred to as TENOAthe registered address of which shall for the time being be the postal address within The Element of the elected Secretary of the Committee as advised unless otherwise authorised in accordance with the provisions of this Constitution.

For convenience of contact and communication the following e-mail address may be used until otherwise notified: viz:

[email protected]

2. Definitions and Interpretation

This constitution is based on the Title Deeds of individual properties in The Elementas

herein described as registered in the Land Registry of Scotland under Title Number

MID147845 and the Deed of Declaration of Conditions dated 24 November 2004 (“Title

Deeds”).

For the sake of clarity, terms used shall have the following meaning:

3. Objects

The objects of TENOA shall be to enable Members to act in a common partnership promoting the efficient and cost effective management of The Element by appointing a Factor and monitoring the work so undertaken to maintain service and improve The Element on behalf of all Members and accordingly charged pro rata as authorised under the Title Deeds of each property and as set out in the requirements of the Property Factors (Scotland) Act of 2011 and to foster co-operation and a sense of wellbeing in the interests of everyone within The Element whether Members, Owners, Tenants and families and visitors of the same.

4. Membership and Membership Procedure

Membership of TENOAshall be open to all Owners on the basis of one Member per

property located at the Element making a maximum total of 278 Members.  Where a property at the Element is jointly or severally owned membership shall be in joint names but always under the condition that the joint Members shall have only one vote.

Applications for membership shall be on the forms provided for that purpose as set out in Appendix 5 and must be signed by the applicant for membership.    Upon registration the applicant  shall become a Member entitled to all the benefits and privileges of membership and is bound by the rules of this Constitution.

TENOA shall keep a register of Members in which the Secretary shall enter the name(s) and addresses of the Members.  Members must inform the Secretary of their address and any change of address.

5. Cessation of Membership

Membership shall automatically cease in the event of (i) the Member no longer being an Owner (ii) the Member resigning (iii) the suspension/expulsion of the Member pursuant to the following paragraph or (iv) the death of the Member.

It is an essential condition of membership of TENOA that a Member pays all levies charged by the Factor.  In the event of a Member being three months in arrears in any such payments membership of TENOA shall be suspended at the discretion of the Committee until all levies are up to date and if they fall six months in arrears membership shall then be terminated.  An applicant wishing membership of TENOA to be reinstated shall apply for membership in accordance with clause 4.

6. Meetings

An annual general meeting of the Members of TENOAshall be held in every calendar year (AGM) at which independently examined accounts for the year ended shall be presented by the Factor for approval and other reports given as appropriate and called for by the Committee and other business transacted under the terms included herein with an interval between AGMs of no less than nine and no more than fifteen calendar months.

Notice of no less than 14 days shall be given of the calling of each and every Meeting of any description with the business to be transacted stated and posted on the TENOAwebsite tenoa.co.uk and on the notice boards in each stairwell of The Elementand provided to each Member at their last known address as registered on the Electoral Roll or for convenience using e-mail address always allowing that accidental omission to provide any Member with specific individual notice shall not invalidate any proceedings at such a Meeting provided that in the judgment of the Committee all reasonable steps have been taken to ensure that the Meeting has been properly advertised.   All such Meetings shall be held at a venue and at a time reasonably convenient to those living at The Element.

7. Quorum at Meetings

A Meeting may proceed to business if 50 Members are present in person or represented by a proxy.  If after fifteen minutes of the advertised time of the start of the Meeting the quorate number has not been achieved the Chairman shall adjourn the Meeting stating any emergency measures necessary for the ongoing business of TENOAto be pursued by the Committee until such time as a further Meeting of Members can be properly called.

At any further Meeting convened by order of the Committee following an adjournment the Meeting may proceed to business whatever the number of Members present in person or represented by a proxy.  No Meeting shall become incompetent to transact business from the want of a quorum arising after the chair has been taken.

8. Voting

Subject to the exception in relation to a Member who owns more than one property at the Element (in which case the Member has one vote for each property owned), voting shall be on the basis of one Member one vote allowing a maximum of 278 votes.  In the event of a tied vote the Chairman shall have the discretion of using an additional casting vote to safeguard the considered needs of TENOA.

TENOA shall act in all respects by a majority vote of the Members present at any meeting.

All Members have an entitlement to be present and vote at any Meeting and shall register upon arrival or be represented by a proxy.   Any Member of TENOA may appoint another person as a proxy to exercise all or any of that Member’s rights to attend, speak and vote at a Meeting of TENOA. Proxies must be appointed by a notice in writing which shall be in the form as set out in Appendix 4.

Others may be present as observers at the discretion of the Chairman who shall have the power of invitation to speak but not to vote.

9. Appointment of Factor

The principal task of TENOAis the appointment of a Factorunder the terms of the Title

Deeds being a company registered under the Property Factors (Scotland) Act 2011 to

manage and service The Element in all respects as required

under the said Act determining the necessary costs thereof and raising a levy or levies

from each of the 278 Owners in equitable share for such purposes all as prescribed in

the said Title Deeds and referred to as a “Service Charge Share”.   The Factor shall

remain appointed once a contract has been entered into until such time as the contract is

lawfully terminated under the agreement signed.

Appendix 3 gives details of the contract in force with the Factors at the date of the

Adoption of this Constitution.

10. The Running Costs Fund (Green Fund)

To allow for transparency in the use of funds raised by levy or levies in accordance with

the terms indicated in the Title Deeds the routine every day housekeeping aspects of The Element including the cost of utilities, renewals, cleaning, redecoration and re-equipping of common areas, garden maintenance, insurances, salaries, fees and all other charges reasonably pertaining to the ongoing maintenance of the entire property shall be provided for out of the running costs fund and commonly called the Green Fundfor easy recognition.   The Green Fund is sometimes referred to as the “Maintenance Fund” in various documents to indicate the range of services.

11. The Repairs Cost Fund (Red Fund)

Major repairs and renewals in respect of the Element and in particular as identified by a

Critical Risk Analysis (as instructed by the Factors and prepared by F3 Building Surveyors Limited and dated 7 September 2016) in the prudent ongoing surveying of the Element as reported from time to time shall be provided for by the raising of a levy separate from and additional to the levy raised in respect of the Green Fund and all in accordance with the Title Deeds and called the repairs cost fundorRed Fundfor easy recognition. The Red Fund is

sometimes referred to as the “floating (or sinking) fund” for repairs.

12. Accounting

The Factorshall be required to maintain a proper accounting system with details provided to the Committee on behalf of TENOA.   The Factor shall publish in convenient form such details of budgeted and actual expenditure as is reasonably consistent with the requirements set out in Title Deeds.   The Committee shall be charged by TENOAto represent the interests of all the Members in the case of any individual Owner demanding disproportionate detail of day to day accounting.

13. Office Holders

A Chairmanand a Secretary of TENOA shall be elected at each AGM to serve as officers of TENOA for the ensuing year, with the possibility of re-election up to a maximum continuous period of six years.   Nominations shall be made in writing to the current Secretary no later than 30 days before the AGM and voting taking place before voting for the Committee as set out in Appendix 2.   The successful candidates shall be the one obtaining the most votes.   The Chairman and Secretary of TENOAshall be ex officio members of the Committee for the year elected at the AGM, serving also as Chairman/Secretary of the Committee.

14. Committee

A Committee shall be appointed by the Membersby an election process in accordance with the provisions as set out in Appendix 2 to manage the affairs of TENOA between full meetings of TENOAin furtherance of its objective and aims and in particular to monitor the work of the Factor in ensuring the proper maintenance and state of repair of The Elementunder the terms of the Factor’s contract as detailed in Appendix 3 and governed by the provisions of the Property Factors (Scotland) Act 2011.

The Committee shall meet as often as necessary for any legitimate purpose and require the Factor to be represented as deemed desirable for reporting discussion and direction and requiring accounts to be made available for inspection on a monthly basis.   The Committee will otherwise work through regular contact between Committee members using any means prudent and practical to conduct its delegated business on behalf of TENOA.

15. Bank Account and Expenses

Financial support for TENOAshall be drawn as required from the Green Fundoperated by the Factor to cover all legitimate expenses of TENOA.  A bank account shall be opened and held in the name of TENOAwith the Chairman and Secretary as alternative authorised signatories.  Full receipts shall be supplied in support of all such expense claims.   The said bank account shall be independently examined annually as required.

The legitimate expenses of any Member of TENOAor any third party acting on the instructions of the Committee shall be vetted and authorised by the Committee and reimbursed out of funds held in the TENOA bank account.

16. Indemnity

Every member of the Committee and person approved to make decisions of behalf of TENOA shall be entitled to be indemnified out of the assets of TENOA against all losses or liability which he/she may incur in or about the execution of his or her office or otherwise in relation thereto and no member of the Committee shall be liable for any loss, damage or misfortune which may happen to or be incurred by TENOA in the execution of the duties of his or her office or in relation thereto.

17. Alteration to the Constitution 

This Constitution shall be effective from the date of its adoption and signing and no alteration shall be permitted except after notice of at least 21 days given herein for the calling of Meetings detailing such proposed alteration and has been considered and approved by at least 75% of those Members present in person or by proxy.

18. Conflict with Title Deeds and Resolution of Disputes

In the event of any conflict between the provisions of the Title deeds and those contained in this Constitution the provisions of the Title Deeds shall prevail.

This Constitution shall be governed by and construed in accordance with the law of Scotland.

In the event of any challenge in respect of this Constitution or the effects thereof which cannot otherwise be resolved to mutual satisfaction the matter shall be submitted to the President of The Law Society of Scotlandor to a person nominated by him for determination (“Arbiter”) which shall be final and binding on all parties the cost of any such determination being levied and paid as directed by the Arbiter.

Signed …………………………. Chairman

…………………………. Secretary

…………………………. Dated

Appendix 1    

Code of Conduct

General

• Consideration for others is expected by all and at all times within The Elementwhether owners, tenants or visitors and this code of conduct applies particularly to issues related to noise, damage to property, the disposal of rubbish, car parking, respect for privacy and all such matters where a lack of thoughtfulness and common courtesy has a detrimental effect on the sense of community important in a residential complex.

• Anyone adversely affected by the behaviour of others or feeling the need to resolve any issue related to living in a community should feel entitled to report any such matter as appropriate and in confidence, whether to the office of The Element Factors telephone 0131 6000 378 or at [email protected] or as appropriate to [email protected]
• Members in particular shall not act in any way likely to bring TENOAinto disrepute, a condition of responsibility included in the Title Deeds.

Conduct at Meetings

• All the normal rules of public meetings apply, with the Chairman charged to encourage everyone whether Member or invited participant to feel involved and enabling the expression of a balance of views and any proposal to be properly considered and where necessary resolved by voting or remit to the Committee.
• This also entitles the Chairman to control the timing of the Meeting in all respects including limiting specific contributions to discussion and avoiding unnecessary repetition always holding the right to determine and rule on the conduct of anyone present if judged disruptive and taking appropriate resultant action including the exclusion of anyone offending against orderly procedure.
• All present at a Meeting are expected to act, speak and listen in a manor not causing offence to anyone and avoiding inappropriate language and abusive behaviour.

Committee

• Committee members should not speak or write on behalf of TENOAwithout the agreement of the Committee and any correspondence including e-mails sent on its behalf should normally be available to any Committee member on request and should always be reported to the Committee as soon as reasonably convenient.
• Confidentiality should always be observed concerning the business of TENOAand Members and other interested parties.
• The principle of collective responsibility should be maintained in decisions of the Committee.
• Potential conflict of interest between personal or professional business and any business related to TENOAshould be disclosed at the earliest opportunity.

Appendix 2     

Constitution of the Committee

• The Committee shall be formed of up to four Members plus Chairman and Secretary elected at the AGM by the Members by ballot on a rota basis here described, the object of this rotation being to preserve continuity of experience whilst ensuring the injection of fresh ability each year.

• Committee members shall be elected to serve for an initial period of two years.   At the end of the first such two year term a retiring Committee member may stand for re-election alongside other nominated candidates for a further period of two years.    At the end of a second term if re-elected such a Committee member will be ineligible to stand again until the following AGM, a total of four years being the maximum continuous period of service on the Committee.   A Committee member is permitted to serve only whilst being a Member.

• Notwithstanding the right of every vote holder to cast a ballot in the election of members of the Committee, with multiple vote holders casting their entitled block votes, in order to avoid any potential conflict of interest perceived or actual no Member shall be eligible to stand for election as a Committee member who is a director or employee of the currently contracted Factor.

• To safeguard the pattern of rotation from being disrupted, where more than one candidate is elected having not previously immediately served one two year period the Committee itself shall determine who shall fill each nominally allotted place of two years only or be considered eligible for re-election after an initial two years.

• In the event of a vacancy caused by resignation of a Committee member the Committee shall have power to co-opt a Member to serve until the next AGM in his/her place.   In order to maintain the continuity of the rotation system, the co-opted Member may then be nominated for election at the AGM alongside other nominees but if elected will continue to serve only for the period otherwise previously allotted to the Committee member whose place he/she has filled.

Appendix 3    

Factor

• The current Factor of the Element is The Element FactorsLtd a company

registered under the Property Factors (Scotland) Act 2011 Company No: SC495190 Factor No: PF000590 (“TEF”) was appointed at the AGM of TENOA on 15^th July 2015 in accordance with the Deed of Declaration of Conditions dated 24 November 2004.

• The contract duly signed on 5 August 2015 remains in force until terminated under the notice set out therein.
• At their best in-house Factors are an invaluable asset precisely because they have a vested interest in the property and the principle is widely recommended.   However, in order to avoid any potential conflict of interest on the part of TEF, whether perceived or real, one of the duties of the Committee acting on behalf of the Members is to monitor the work of TEF (or any other Factor) and to liaise between the two to ensure effective management of The Element.   The power to terminate the contract is always within the hands of TENOAas it is also in the hands of TEF.   

Appendix 4    

Proxy Voting

FORM OF PROXY

THE ELEMENT NEWHAVEN OWNERS’ ASSOCIATION 

(“TENOA”)

I, [NAME OF MEMBER] of [ADDRESS], being a member of the TENOA hereby appoint [NAME OF PROXY] of [ADDRESS] as my proxy to vote in my name and on my behalf at the [Annual General] Meeting of TENOA to be held on [INSERT DATE] at [INSERT TIME am/pm] and at any adjournment thereof.

Please note: To be valid, this form must be completed and deposited at the registered office of TENOA, being the postal address of the Secretary of TENOA, or by e-mail to [email protected] not less than 7 days before the time fixed for holding the [Annual General] Meeting or any adjourned meeting or at due notice deemed necessary by the Committee.