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Home » Committee Concerns » Committee Concerns NSW » NSW: Can a lot owner still give their proxy to a family member?

NSW: Can a lot owner still give their proxy to a family member?

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Question: Do the recent changes to the legislation mean that the mother can no longer sign over her proxy to the child?

In our strata scheme, a mother owns a lot, and the son resides in the unit. The mother does not reside in the building and gives her proxy to the son. He is a committee member. Do the recent changes to the legislation mean that the mother can no longer sign over her proxy to the child?

Matter [9] : Section 32 Persons who are not eligible to be appointed or elected to strata committee

Omit “to a strata committee or to act as members of a strata committee unless they are also the owners of lots in the strata scheme” from section 32(1).

Insert instead “as a member of a strata committee, unless the person owns a lot in the strata scheme”.

Answer: A strata committee member does not have to be a lot owner.

You need to consider the words in the context of the section. With the amendment to section 32, it now reads as follows:

32 Persons who are not eligible to be appointed or elected to strata committee

  1. The following persons are not eligible for appointment or election as a member of a strata committee, unless the person owns a lot in the strata scheme—

    1. the building manager for the strata scheme,

    2. a real estate agent carrying out functions in connection with the leasing of a lot in the strata scheme,

    3. a person who is connected with the original owner of the strata scheme or the building manager for the scheme, unless the person discloses that connection at the meeting at which the election is held and before the election is held or before the person is appointed as a member,

    4. any other person prescribed by the regulations for the purposes of this section.

  2. An owner of a lot in a strata scheme who was an unfinancial owner at the date notice was given of the meeting at which the election of a strata committee is to be held and who did not pay the amounts owing by the owner before the meeting is not eligible for appointment or election to the strata committee.

  3. A person who becomes ineligible for appointment or election to a strata committee after being appointed or elected to the strata committee must disclose that fact to the secretary or chairperson of the owners corporation as soon as possible after becoming aware of that fact.

  4. A disclosure by a person under this section, other than a disclosure that is made at a meeting of an owners corporation or strata committee, is to be made by written notice given to the secretary or chairperson.

  5. If the office of a member is vacated under section 35(1)(e), the person is not eligible for appointment or election as a member for the period of 12 months commencing on the day the resolution is passed.

Section 32 deals with people not eligible for appointment to the strata committee. If the lot owner’s son is the building manager or a real estate agent who carries out leasing functions of the lot or lots in the scheme, they are not eligible for appointment to the strata committee. To put it another way, a strata committee member does not have to be a lot owner. A lot owner’s proxy could nominate themselves for the strata committee, provided their proxy authorises them to do this.

This post appears in the April 2024 edition of The NSW Strata Magazine.

Allison Benson
Kerin Benson Lawyers
E: allison@kerinbensonlawyers.com.au
P: 02 4032 7990

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About Allison Benson, Kerin Benson Lawyers

Allison is a strata lawyer who has provided general strata advice, acted in strata disputes (including building defect disputes) and worked with clients in preparing and enforcing by-laws and strata management statements, since 2008. From 2012 onwards, Allison has acted exclusively on behalf of owners corporations and lot owners in respect of both strata and community association disputes and building and construction disputes.

Allison has extensive experience in commercial litigation and dispute resolution, having represented clients in contractual claims, interpretation of by-laws and rules, Home Building Act claims and levy recovery claims at all levels of court proceedings, including in the Court of Appeal and in the former CTTT (now the NSW Civil and Administrative Tribunal known as NCAT). Allison’s knowledge across a variety of strata schemes matters enables her to advise owners corporations, lot owners and other interested parties on a range of issues and to represent their interests both informally and before the courts.

Allison is a member of the Australian College of Community Association Lawyers (ACCAL), the Newcastle Law Society and the Society of Construction Law Australia. She holds a Bachelor of Laws (Hons) from Macquarie University and a Bachelor of Business from the University of Newcastle.
Allison's LinkedIn Profile.
Allison is a regular contributor to LookUpStrata. You can take a look at Allison's articles here .

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