Flat Chat Strata Forum Strata Committees Current Page

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  • #8035
    2000and1
    Flatchatter

      Hi all, 

       

      Big problem with a strata involving commercial and residential owners with about 40 lots. 

      7 commercial lots are owned by one company and have approximately 23-24% of unit entitlements. 

      The company has 3 directors.

      As a company that owns 7 lots, are the company directors allowed to nominate up to 7 people on the executive committee? 

      Are they allowed to nominate all 3 directors and then use their unit entitlements to put 3 people on the executive. 

      If so, are they able to vote for themselves or must they rely on other lot owners for each of their nominations? 

       

      Am I right in assuming they can call for a poll vote in the election of EC members?

       

      thanks in advance. I’m really struggling to unravel this one! 

    Viewing 3 replies - 1 through 3 (of 3 total)
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    • #15196
      Jimmy-T
      Keymaster

        This is very complicated (as you've discovered) and there are a few aspects of strata law that have to be addressed.  Firstly, who has the right to vote on behalf of the company?  And if that person is standing for election themselves, they can't then nominate a co-owner or, I think, any other person.

         

        This is what the strata act says:

        (4)  A person is not eligible for election as a member of an executive committee unless the person is:

        (a)  an individual who is an owner,

        (b)  a company nominee of a corporation that is an owner, or

        (c)  an individual who is not an owner but who is nominated for election by an owner who is not a candidate for election.

        (5)  A person who is co-owner of a lot may not be a candidate for election as a member of the executive committee unless the person is nominated for office:

        (a)  by an owner who is not a co-owner of the lot, or

        (b)  by a co-owner of the lot who is not a candidate for election as a member.

        So can the company nominate seven different people for seven different lots?  I suspect they might but they may first have to establish their right to vote before they do so under the terms of clause 118  (below).

        I would be strongly tempted to run a case through Fair Trading to ask who had the right to nominate whom, who nominated themselves and shouldn't have, and who nominated others and shouldn't have.

        Once that is established, you can demand another meeting at which the EC election is re-run.

        But your best bet is to galavanise all the other owners and warn them that their building is in danger of being run purely to suit the commercial interests. 

        This means, worst case scenario, things like planning DAs for work that might not suit residents will go through approved by the EC when it would otherwise be opposed.  It means money for repairs and maintenance will be funnelled into the commercial properties and you can forget ever getting any by-laws approved that benefit residents but not the commercial interests.  Visitors parking?  Suddenly that will become customer parking. 

        You really need to nip this in the bud – organise your votes and make sure you have a block of good people that everyone can vote for and who occupy all the vacancies on the committee.

        By the way, poll (unit entitlement) votes for EC elections are allowed in NSW but not (I think) in Queensland.

         

        118   Notice to be given to owners corporation of right to cast vote at meeting

        (1) Person with right to vote at meetings must notify owners corporation
        A person who has an interest in a lot that, subject to this Act, gives the person a right to cast a vote either personally or by nominee at meetings of the owners corporation must notify the owners corporation in writing of that interest.

        (2) Contents of notice
        The notice must specify the following information and, if the interest is a mortgage, include confirmation by the mortgagor or be verified by statutory declaration of the mortgagee:

        (a)  the person’s full name and an Australian address for service of notices,

        (b)  the lot concerned and the exact nature of the person’s interest in it,

        (c)  the date on which the person acquired the interest,

        (d)  if the voting entitlement conferred by the interest is one that, according to Schedule 2, is to be exercised by a nominee, the nominee’s full name and address for service of notices.

        (3) Other matters to be specified in notice
        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,

        (b)  the interest is that of the liquidator or receiver in bankruptcy of any person,

        (c)  the interest has arisen by operation of law or the order of any court,

        (d)  the interest has arisen in any manner otherwise than by transfer of the interest from some other person or the discharge of a mortgage.

        (4) Owners corporation may require notice to be given
        The secretary of the owners corporation, if of the opinion that a person obliged to give notice under this section has not done so, may by a requisition in writing served on the person, require the person:

        (a)  to state, within 14 days, whether or not the person is a person required to give notice under this section, and

        (b)  if the person is such a person, to give that notice.

        (5) Person prevented from casting vote if certain requirements not met
        A person is not entitled to cast a vote at a meeting of the owners corporation if the person has not complied with a requisition served on the person under subsection (4) or, in the case of a vote to be tendered through a nominee, if the nominee’s full name and address for service of notices have not been notified under this section.

        (6) Changes in certain information to be notified
        A person who has given notice under this section may by further notice advise any change of nominee or of the person’s or any nominee’s address for service.

        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.
        #15208
        2000and1
        Flatchatter
        Chat-starter

          Thanks JimmyT, 

           

          The meeting is not until next month, but we know what is coming. 

           

          I think you got to the core of the issue, and that is the ability of the company to nominate multiple people for seats on the executive, and therefore, how can they nominate several people, much like a co-owner situation. 

           

          I'll put a call into the department of fair Trading and see if I can get any further. 

           

          p.s. as for getting by-laws passed with 40 lots against one party that holds 24% of the entitlements…forget it! getting 40 owners organised is worse than cat herding! Frown

           

          Cheers. 

          #15253
          Jimmy-T
          Keymaster

            Much as I hate to be seen pimping my lawyer mates, this is a clear case for getting legal advice first and maybe even having a lawyer there at the meeting to challenge every dodgy nomination that comes up.  You may have to pay for this out of your own collective pockets but if you can spread it around, it would be worth the money.

            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.
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