- This topic has 3 replies, 2 voices, and was last updated 8 years, 9 months ago by .
-
Topic
-
The Executrix of a unit in our building (of 12) has leased the Unit before Grant of Probate (NSW) and has nominated her husband to fill the casual vacancy on the EC. He is a non owner. To nominate someone Under Schdl 3 you must be an owner. However,
Under Sec 118(3) (3) Notice can be given to vote at a general meeting. “The notice must specify the manner in which the interest arose and be verified by statutory declaration if any of the following applies to the interest:
(a) the interest is that of the executor or administrator of the estate of a deceased person,
The Strata Manager is “satisfied” from letters from her lawyers she is the Executrix. However I need to know if probate needs to be granted first so the property is transferred to her name i.e she has “control” of the property which is still in the deceased name according to The Certificate of Title. Also,can she lease out the unit before probate is granted?
Seems to be conflicting legal points of view on whether probate need to be granted first. I assume if correct notice is given to vote then she can nominate her husband.
The EC has voted via paper vote and appointed her husband to the EC.
Should the letters to the Manager be part of the OC records so I can view them or are they “confidential” ? Does the Executrix need to be entered on the Strata Roll before the nomination and what other details should be recorded on the Roll to make her eligible to nominate her husband?
Sue
-
Replies
-
If probate hasn’t been granted, then the owner of the unit is the estate (and the estate may be the owner after probate is granted). Presuming the appropriate documentation is supplied, I don’t see what the problem is with the estate nominating someone to the EC, but it would have to be the duly appointed representative of the estate. That is a matter for the strata manager, rather than you. You could ask the strata manager if they are satisfied that the nomination is in accordance with legal requirements.
To be honest I don’t think it is any of your business whether or not the unit can be leased. That is a matter for the executrix.
Perhaps I should have been clearer – I said the person has to be the duly appointed representative of the estate. The strata manager needs to be satisfied that they are the duly appointed representative. This is usually by grant of probate, unless the estate is under a certain amount (which it would not be here because the property forms part of the estate).
In relation to what you should be involved in, what I am saying is that you are entitled to rely on the strata manager in the absence of information to the contrary. On matters such as the apartment being leased out, if the executor didn’t/doesn’t have the power to deal with the property, that is their problem – it isn’t a breach of the Act.
i suggest if you are concerned just send a note to the strata manager asking them to confirm that they are satisfied that the executor is the duly appointed representative, and if so on what basis.
We had a case a few years ago where a person put in a proxy to vote at an AGM. The proxy was invalid because the relevant property was still in the name of the deceased previous owner, even though probate had been granted. In that case that was the fault of the estate’s lawyer who should have effected the transfer of the property.
- You must be logged in to reply to this topic.