Question: I have a variety of questions about the voting process, number of votes, whether the vote is valid and what to do when one owner holds the majority of the votes.
- When owners are voting at an AGM, is the vote valid if the individual pages do not have a signature or a lot number? Also, the last page is not completed with the Owners name, signature and lot number.
- When a voting paper has two lot numbers written on the front page i.e. 1 and 7, is the owner entitled to two votes or one? Shouldn’t two forms be filled out to have two votes? Also, as above each page was not signed. Also, if 20 people voted shouldn’t each Resolution have 20 votes?
- We have several Resolutions adding to 16, 18 and 19 and the resolution to extend the Caretaking Agreement had 22 Votes! How can you have a total of 22 votes when only 20 people voted?
- Is the Caretaker/Letting Manager allowed to buy up Units in the development? They now own 4 Units plus have the Proxy of one Owner. When only 20 people vote, the Caretaker has 25% of the Votes making it very hard to pass any Motions. Is this legal? Is this voting process valid?
Answer: Most of your questions will be determined under the authority of the Chairperson.
While the Secretary is nominated to receive the votes the function of determining their validity is delegated to the Chair.
Advance voting papers should be signed, with the owners name and lot number clearly written. If not, they could be ruled out if the intention of the owner is not clear. However, if the paper is missing some of the information then it can still be ruled valid. For example, if the voting paper submitted doesn’t have a lot number recorded but clearly comes from John Smith and there is only one John Smith on the roll it may be reasonable to count that vote. The important thing is to be clear and consistent in any rulings where there is room for debate.
It is common for owners to own more than one lot and in that instance, they usually list all lots on a single voting paper. So long as this is marked clearly there shouldn’t be an issue with this.
The number of votes recorded should not exceed the number of lots voting. However, it may be that the number of people voting is less than the number of lots recording votes as some of those people may own multiple units. If Mr Smith owns three units he will be one person attending the meeting but may have three votes counted. The minutes should reflect this and if you have any concerns you should ask your body corporate manager to clarify.
There is no rule preventing the caretaker from owning lots in a complex and their votes are as valid as the next owners. Sometimes the regulations can create situations where quite a lot of authority is placed in the hands of one person. That’s not always satisfying but it is not incorrect.
Most of the questions here will be determined under the authority of the Chairperson.
The government website lists their duties when chairing a general meeting as including:
- ruling a motion out of order if:
- it is unlawful or unenforceable
- it conflicts with a by-law
- the substance of the motion was not included in the agenda for the meeting
- declaring the results of votes on motions at the meeting
- confirming that each ballot paper is the vote of a person who has the right to vote in the election (where a ballot for a committee position is needed)
- declaring the result of an election for a committee position.
- So the chair will need to check votes received and determining the validity of the vote.
Validity will include questions such as whether the owner is financial and in a position to vote and questions over whether the voting forms have been filled incorrectly.
There can be a lot of debate around this as not all voting forms are filled in exactly but they should certainly indicate the owners name and signature clearly and without this, they may not be considered valid.
This post appears in Strata News #465.
William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924