- This topic has 7 replies, 6 voices, and was last updated 5 years, 2 months ago by .
-
Topic
-
Here in Victoria two of our owners have died. To date the Secretary has not been advised of any change of ownership.
With our AGM nearly due are they allowed to vote on resolutions? Whilst the Secretary is prepared to invite them as observers, they would prefer they didn’t vote at this stage.
While both heirs apparent were advised to seek legal advice before paying their fees, one has insisted on paying them as due.
Are the heirs apparent considered members of the OC? If so, where in the legislation is this specified?
Thanks
-
Replies
-
David Ng said:
With our AGM nearly due are they allowed to vote on resolutions?
I assume by “they” you mean the new owners. Generally, people become members of the owners corporation as soon as their names are added to the strata roll.
But the legal definition of an owner is containe in the Subdivisions Act of 1988 where “owner” means—
(a) for land under the Transfer of Land Act 1958(other than land in an identified folio under that Act), the registered proprietor of the fee simple in the land, or a person who is empowered by or under an Act to execute a transfer of the land;
(b) for land in an identified folio under the Transfer of Land Act 1958 or land not under the Transfer of Land Act 1958, a person who has an estate in fee simple in the land (except a mortgagee), or is empowered by or under an Act to convey an estate in fee simple in the land;
None of which is at all helpful. Basically, if any of the new owners wants to vote, they’ll have to have their name included on the strata scheme’s Register before the meeting. That would normally be done by the secretary or strata manager if you have one and, I assume, would require proof of ownership or perhaps appointment as a power of attorney for the deceased estate.
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.
If this were the ACT, then the person to whom ownership passed would have to have notified the OC that they were now the owner and have provided their details for the unit roll in order to be eligible to vote. I expect an heir in such circumstances would have to show evidence that title to the property had been transferred to them before the OC would record them as the owner. Where there are more than one owner on the unit roll, one person must be recorded as the person who will act on behalf of those multiple owners, including voting.
Alternatively, if title has not yet been transferred but the deceased owner had appointed someone as their proxy, then I think that proxy could vote.
I don’t think an heir who is not yet on the title documents, who was not appointed as proxy, can just put up their hand and claim a right to vote.
I don’t think it matters if someone who might not be the owner has paid the levies.
The above is what I think would apply in the ACT and I am just guessing that Vic would be similar.
I think JT is likely correct. If they can demonstrate power of attorney for the deceased estate, then they would have the power to appoint themselves as proxy for the deceased owner if that owner’s name is still on the title documents.
Also, from JT’s quote, it seems that a person who is empowered to execute a transfer of the title, which might be the executor, can act as the owner and could appoint a proxy, which could be the heir apparent.
I think the chair of the meeting would want assurance from the Secretary that appropriate evidence has been presented before the chair would accept their vote. With such evidence (and levies up to date), I think the chair should accept the heir apparent’s vote.
While it’s an interesting question, I doubt it will become an issue.
I can’t imagine that powers of attorney would even present themselves at an AGM unless there was a “controversial” motion that could affect them.
If it’s a more routine AGM, I doubt you even hear from them. And even if you do, the question will only arise if their vote actually mattered at all. In other words, would it have changed the outcome?
In such hypothetical situations (for a typical AGM that is) it might be best to simply see how it unfolds. It probably will be a non-issue.
Austman and Sir Humphrey are right … but I can thing of a few instances in my past where people have been desperately scrabbling for votes to pass or prevent some controversial by-law. And I love the idea of the zombie proxy voting for the dead.
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.
The initial question is answered in reference to laws relating to wills ( or lack of).
When a person dies, their assets are administered by their legal personal representative. That’s either an executor if they had a will, or an administrator if they did not.
The legal personal representative is appointed when probate is granted by the Supreme Court. (Usually a few months after death)
The LPR carries on as if the person was alive. In order to vote the LPR needs to present a will and the grant of probate to the Chairman. However most people have not encountered this and may deny the LPR his right. (Banks and other financial institutions know this and handle this with ease).
The heirs have no right to vote until the LPR transfers the title to the heirs.
I think kaindub’s info is on the money – unfortunately, so too the caveat that an LPR’s right to vote or submit a proxy may be wrongly rejected out of ignorance.
This is not simply an interesting question: In dreaded two-lot schemes, where one of the owners has died, rejection of an LPR’s right to be registered on the strata roll and to vote at meetings can have significant consequences.
In my experience (NSW), even strata law specialists seem unclear about what can and can’t be done (by strata committees, owners’ corps, LPRs and heirs) during the periods from the owner’s death until grant of probate/letters of administration; and then from grant of probate until transfer of title to a new owner (an heir or purchaser from the estate).
Even without the rejection of an LPR’s standing, it seems that’s it’s possible for the surviving owner in a two-lot scheme to “make hay” during the period before probate is granted (which can be lengthy – more so if there’s no will or complications with it). Apparently there’s nothing in the NSW legislation to prevent them holding meetings and passing motions (although presumably these could be challenged later).
NSW Fair Trading advised that “next of kin” were automatically entitled to have their interest registered on the strata roll and to vote, but couldn’t provide any legislative basis.
I’d have thought the issue occurred often enough – especially in two-lot schemes – that it would have been clearly resolved in the strata act by now (even though I’d have thought the provisions of the succession act, as per kaindub, hold sway – in NSW anyway).
Intriguing as the prospect of zombie proxies may be, any existing proxy would surely expire on death (as does any power of attorney; as far as I’m aware, you can’t have power of attorney for an estate – in NSW, at least).
- You must be logged in to reply to this topic.