Making this stuff more accessible is likely to be a challenge.There are entire articles that I barely understand linguistically, and I can’t imagine I’m the only one. @Sophie_B: would you possibly know about or have access to a good machine translator tools that could put some of us out of our misery?
What are the legal implications of this “indivision” (art. 4.2)? What happens to the other associates when one associate has made bad debts elsewhere (e.g. a bankruptcy)?
What do we do about the lack of alignment between our current governance methods and the statutes?
My personal take on this: a) It seems wise to have a legally sound fall-back option for when we encounter a deadlock. This would plea for going with the notary’s draft and accepting several major differences. b)It is much easier to modify our Governance Document than to modify the statutes of the société simple. This would again plea to just stick with the notary’s version and then do our own thing.
In spite of the above, should we align our Governance Document with certain elements in the statutes, and if yes, how do we go about this? E.g. the appointment of all the “instances” like the Conseil de Gestion and the Comité des Sages?
How far can we go in deviating from the statutes, and what are the legal implications? E.g. regularity of the meetings, signing of the PVs, authority of the conseil de gestion, …
What are the fine-grain implications about the clauses about exit (art 9.3-9.6)? I take it we can block the approval of somebody wanting to leave as long as we don’t have a new Full Member to step in. But what do we do if somebody with a big unit (hence a big share) wants to get out? Will we wait until we have 2-3 new Full Members that can take over the share of the outgoing member?
Insurance of people on the conseil de gestion: is it possible? Recommended? …? I don’t know about you, but I find all this quite scary.
And finally an afterthought for @reef-recruitment: should we consider adding another stage to our recruitment process? By this I mean: can it be an option that new people become a Full Member of the asbl after 3 months - i.e. as before: pay 2000 euro and get full decision-making rights - but that we take another 3 months before we make them member of the société simple? The reasoning would be that making somebody a member of the société simple is a very big step, and that we maybe want to take our time to make sure that there is 100% trust both ways?
Shall we maybe organise a meeting with those who can make it, with as the only topic on the agenda the preparation of the meeting with the notary?
Only question I can answer (thanks, @Lee for this post!): eTranslation - a machine that is trained on legal texts, so I am assuming it might work better than deepl etc.
I think it’s a good idea. I understand @alberto , @Sarah , @Lee and @RichardB are available on Monday, 11 September at 13:30 meeting with the notary, right? For the prep meeting, could we consider Sunday, 10 September (as next week is super full with meetings already) or you think it’s too late?
Oh sorry, perhaps i misunderstood @Lee message… or are you suggesting to do it instead of the plenary?
I am adding @Sophie_B in the discussion.
We would probably be working on this topic together, so it would actually be better if she can join both meetings.
I am out this week-end, unfortunately. Monday I will be travelling but will make a stop to participate in the call with the notary. Not sure about the role you want me to play in this, but in my opinion, most comments are for the Reef to take a position on first, so that subsequently this can be translated in the draft statutes. At this point in time there are a few questions for clarification to the notary only.
If we could postpone by a week the meeting with the notary, I could help with this for example at a reef meeting next week Thursday or Friday. Up to you, perhaps we can discuss after tonight’s Plenary?
@Adriana I see your point. I have the impression though that the clarifying questions to the notary are not trivial ones, and that we need the answers in order to be able to make up our position. Am I wrong?
@Lee - my approach would be to sort the questions to the Reef in my annotated document first, as my expectation is that some may lead to additional questions for the notary. So we would then be able to more efficient with the notary and our time and have all questions in one go. Most questions I had for the notary are more legal in nature.
Also, at the internal meeting of the Reef I think I will be able to answer already many questions reeflings may have from a legal point of view. I have been responsible for setting up a not for profit association and 2 for profit companies in the past so can explain in general why things are the way they are.
I have a strong preference for somebody to be in the lead and take responsibility, so happy to follow you in any way you want to approach this.
What I would appreciate though is a clarification on why you think we don’t need the answers from the notary first. This would help me to better understand the issue.
In addition to that I’d be grateful if you could have a look at the some of the questions that I asked in post no 22 above, in particular points 3 and 5, because the way I understand it these are two things we would need to understand first.
@Lee. With regard to your point 3: in my annotation I have assumed that the Reef would want to retain the governance as laid down in the statutes of the ASBL and have the same rules apply in case of the Societe simple. Hence I compared both documents and propose many changes to align the two. I also propose to add a clause that says that the governance as laid down in the ASBL will take precedence (if permitted by law).
Re your point 5: a Societe simple is a very flexible instrument and using terms like ‘minimum x meetings a year’, minimum x members, you can insert a lot of flexibility. The law only prescribes few mandatory things (like for example minimum 2 members, having an annual meeting).
Does this help?
So my way of thinking is that first we make the document from a governance point of view the way we want it to be, and then go back to the notary. The other thing the Reef needs to think about is how it wants to deal with certain issues like a member dying when still in the building process. As for example it looks like the current statutes exclude the heritiers to a large extent. Here as well, it is important for the Reef to identify how it wants to operate, so that this can be incorporated in the statutes. Also the current statutes do not allow for a withdrawal at the moment a site is chosen. A solution could be to have the Societe ‘ready to go’ and to incorporate once the site choice is made and members had a chance to commit. Or to allow aan ASBL member in only if they commit to the site choice.
Does this help? As under the rules of an Societe simple almost anything is possible, the Reef needs to be clear on how it wants to operate under the statutes. Only then the notary should get involved again.
1. Quick summary of this afternoon’s prep meeting:
We disagree with the strategy as outlined by Adriana above: see list of key questions and three modes of governance below.
Richard and I went through the document, and removed a couple of comments that do not immediately require the attention of the notary.
Ugne will send the document and the essence of this post to the notary ahead of the meeting.
2. Basic approach and key questions
There are three key questions that we would like to ask the notary at the beginning:
Why is the statute formulated the way it is? Are there legal requirements or recommendations? Are there any mandatory elements that we can’t or shouldn’t delete?
How can we meaningfully align the statutes with our other two ways of governance?
Are we correct in assuming that it is better to keep a legally sound fall-back option in the statutes, which we would only use when things go terribly wrong? In this approach our informal governance mode would prevail, and the asbl would be used for minor organisational issues (see point below).
3. Three modes of governance?
To be sure that we have a good common understanding of our governance architecture, here’s a quick overview of the different structures, and how we could use them.
3.1. The société simple
The société simple will be our main legal vehicle for everything that is related to the building and its ownership, and to make all major financial transactions.
The statutes would only be used in two cases:
Where it is legally mandatory
When things go terribly wrong and our informal governance mode leads to a stalemate
There are a number of key questions on the how and the why of these statutes, which we should better understand before we can finalise them.
In terms of alignment we should seek the right balance between the following factors:
We can’t update the statutes as easily as we can update our informal governance document, so we should probably stick with a legally sound version that we will then ignore unless we don’t have another choice.
To the extent possible however, it will probably un-complicate our lives if we can somehow align the statutes of the société simple with our informal governance mode and/or the statutes of the asbl.
3.2. The asbl
The asbl will be our legal vehicle for some issues of minor importance: associate and full membership (+ membership fees), insurance for activities, and minor payments.
We only use the statutes in two cases:
Where it is legally mandatory
When things go terribly wrong and our informal governance mode leads to a stalemate
The statutes are formulated such that the center of gravity lies with the AG.
3.3. Our informal governance document
Our informal governance document (currently undergoing a substantial revision) includes a description of the processes we actually used, which are mostly based on sociocracy. Whenever something no longer meets the “good enough for now, safe enough to try” adagio, we can simply change our governance document.
The essence of our decision-making modes is that we differentiate in function of the gravity of the decision, ranging from unimportant decisions to be made by Teams autonomously, from important decisions to be made by consent in the plenary, to sensitive, irreversible decisions, which we take by consensus.
4. Questions + a couple of issues where further clarity is needed
Withdrawal: there are quite some questions about this (see Adriana’s comments in the document).
Why is the center of gravity in the Conseil de Gestion (as opposed to in the GA, as it is in the asbl)?
Can you please explain the details around the clauses on usufruit? (see the document)
Is the Comité de Sages a mandatory instance?
Can you please explain the details around the “copropriété forcée”? (see document)
Should we include a clause that requires a double signature for financial transactions?
Sadly the document got badly corrupted in the back-and-forth to Google Docs and back. The formatting went bananas, up to a point where the numbering of certain articles is no longer automatic (and thus wrong). To move forward, I would flag this to the notary (I also did it somewhere in the document), and suggest that we go back to his original copy, and make any changes that are needed in that version.
Sadly Richard and I have also had some synching problems on Nextcloud. I gave it a final check, and I think the essence is in the document for the notary (we have a back-up with all comments in the “archive”).
I felt quite uncomfortable when reading certain questions and comments. We probably have different styles of communication, and that is fine, but at some point I think it is good nevertheless to bear in mind that the notary is like a partner, and that we want to make our points respectfully and assuming that there is a lot that he knows that we don’t. Examples include the excessive use of questions marks “???”, giving instructions on the use of capital letters, or formulating comments as instructions instead of requests. As a consequence I have removed some comments and reformulated some others. No harm is done, but as a member of Team Onboarding I’m starting to see how crucially important onboarding actually is. I’ll bring it up at our next meeting.
Thanks an incredible lot for the detailed revisions @Adriana. I don’t believe however that it is possible or desirable to mirror the statutes from the asbl in the statutes of the société simple, for the reasons I set out in section 3 in my post above. Given that this leads to quite a significant change in approach, we have removed some of your comments (we have a back-up) and we would like to start with the basic questions as listed above. I hope this is ok.
(thanks,