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Topic
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We recently had our AGM where the members of the Strata Committee were elected.
Since the meeting there has been some dispute as to the eligibility of two members elected on the night.
The following was brought to our attention post meeting.
ELIGIBLE FOR ELECTION
1. an individual who is an owner
2. a company nominee of a corporation that is an owner
3. a co-owner of a lot if nominated by another owner other than the co-owner, or the co-owner if they are not a candidate. Only one co-owner of a lot can be a member at the same time.
4. an individual who is not an owner but who is nominated for election by an owner who is not a member nor a candidate.The two elected members (both of whom co-own with someone else) self-nominated prior to the meeting, they were not nominated by their respective co-owners, nor another owner within the complex.
Some questions:
Can this just be ignored?
Can the invalid nominees simply be told they are invalid & can we continue with a much more manageable 5 member SC as opposed to the 7 elected on the night?
If the invalid nominees want to re-nominate can this occur, or do they need to wait until the next AGM?Our Strata Manager who was chairperson on the night, suggested it was all too technical & that it would be up to the 5 eligible elected members to decide if they would like the invalidly elected members to be re-nominated by their co-owner or another owner, or if the SC would like to continue as a 5 member committee.
What would be the correct way to proceed?
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Replies
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Your strata manager needs to go back to strata manager school.
First of all, there should have been nominations established at the AGM, which the strata manager should have checked against the roll.
Then he or she should have declared nominations closed and called for a vote on the number of members that the owners want to be on the committee.
That number, or the lack thereof, will determine what happens next.
The two wrongly nominated members of the committee are not members. That is a fact of life – if they complain, well, maybe they should have done some research before presenting themselves for office. The law is the law.
Now, assuming that the SM followed procedure and asked for a vote on how many members the committee should have, that number stands.
If it was seven, you now have five seats filled and two vacant, and this is where it gets interesting Section 35 (2) of the Act says: “A strata committee may [my emphasis] appoint a person eligible for election as a member to fill a vacancy in the office of a member of the strata committee … Any person so appointed holds office, subject to this section, for the balance of his or her predecessor’s term of office.”
I emphasise the word “may” as I believe there is no compulsion to do so. If three out of your five active members decide they don’t want either or both of the invalid nominees to join the committee – or if they want someone else entirely who would have been valid for election – then they can decide on that basis. There are vacancies and they can fill them with whomever they want.
On the other hand, if proper procedure was not followed, and a number of seats on the committee was not agreed, then you could be in even more of a mess. My advice in that case would be to say that the five nominees were valid, so that is the committee. The owners corp has not said they want more than five so if anyone wants to challenge this at NCAT, let them.
This is all laid out in Section 9 and Section 10 of the Strata Regulations and section 35 (2) of the Act.
By the way, if this turns nasty, be aware that there are other electoral potholes that strata owners frquently fall into, especially people standing for election and cross-nominating each other and two part-owners from one household both sitting on the committee.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
All sounds a bit raggedy. I’d propose in the simplest response you seek that only the 5 legitimate members vote on motions and the other 2 contribute in the general positive way they would be expected to as committee members but do not vote. If that is not acceptable to the 2 they need to go and guests filler spots offered to another 2 qualified/owners to replace them as would happen for when and as any regular vacancy arises.
The simple answer is in two parts.
Firstly, the committe can just vote the two self-nominees on to the committee. That would be perfectly legal.
Secondly, they can tell the strata manager that they would like all future committee elections to be conducted by the book – no short-cuts or assumptions, with everyone made aware of who can and can’t be elected.
That would be progress.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
We had a similar problem recently with a well known agent from Liverpool.
The AGM was attended by a manager and a Director of the agency of whom neither said boo when one of their stooge owners (stooge 1) nominated themselves and also another stooge (stooge 2) for the SC.
Stooge 1 then sold her unit meaning she was no longer a SC member by virtue of s 35. Stooge 2 was never properly nominated in the first but was told repeatedly by the agent she was still a SC member, even though her nomination from stooge 1 was no longer from a person eligible to nominate her.If a position is not vacated by virtue of one of the ‘conditions’ in s 35 then s 38 can in some cases be applicable.
“any defect in the appointment” is broad enough a statement to be interpretable as a defect in the nomination process.The point of s 38 is not to validate a bogus election but to validate a good faith act or proceeding. So even if these bogusly appointed people voted at a SC meeting the decisions of the SC would still be good.
Somewhere in the AGM minutes it will note these people were elected and that is ‘evidence’ of the validity of their position until challenged even if others know the election was bogus.
Tell them they are not a SC member (and to take it up with NCAT if they have a problem). I like that call. That is what we did.
38 Acts and proceedings of strata committee valid despite vacancies or defects
(1) This section applies if, when any act or proceeding of a strata committee was done, taken or commenced there was—
(a) a vacancy in the office of an officer of the owners corporation or any other member of the strata committee, or
(b) any defect in the appointment, or any disqualification, of any such officer or member.
(2) Any act or proceeding of a strata committee done in good faith is as valid as if the vacancy, defect or disqualification did not exist and the strata committee were fully and properly constituted.
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