We have been asked about seeking body corporate approval for installing shutters after being unsuccessful the first time. This has been answered by Frank Higginson, Hynes Legal.
Question: The Secretary of our Body Corporate Committee has applied for body corporate approval to install shutters after receiving a ‘No’ a few years ago. Is this right?
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About three years ago an owner applied to have shutters installed on the whole length of the inside of the glass balustrade on her balcony. This was taken to an EGM and voted against almost unanimously with a resounding NO as it detracted from the architects vision and integrity of the building and because of where they will be placed the wind is a real concern.
The person is now the Secretary of our Body Corporate Committee. Now she is on the committee, she applied for body corporate approval again and they voted yes she can do this. Of the four people that voted yes for the Secretary to install the shutters only one was an owner at the time of the EGM. The others are all new members. Did seem strange that other committee members that were here for the EGM were not present at the meeting, being another four members.
Where do we stand when it has already been voted on at an EGM with an all most unanimous NO? Unfortunately the committee is stacked and does not have the interest of the building as a whole in its sights.
Hoping you can help.
Answer: If an owner puts up a motion and is unsuccessful, there is nothing preventing them from putting it up again in the future.
There are a couple of topics that pop up here.
Firstly, if an owner puts up a motion and is unsuccessful, there is nothing preventing them from putting it up again in the future.
While a general meeting decision will ordinarily override a committee one, the new application for approval was made 3 years later and, provided the shutters are installed on her lot, it sounds like something the committee is empowered to decide under the by-laws.
If owners do not like the committee’s decision and want to challenge it, they can. However, they’ll need to be able to show that the legislation was not followed or that the decision was unreasonable.
Secondly, it isn’t clear from the query whether the secretary voted on her own motion. If she did, she shouldn’t have because of the conflict of interest provisions of the modules (section 53 of both the Standard and Accommodation Modules). However, if her vote is excluded and the numbers are such that the motion still would have passed, there would be little utility in challenging the motion on that basis.
The fact that lot ownership or committee composition has changed over time does not alter our view. An owner seeking body corporate approval for something will often put their request forward again in those circumstances.
This post appears in Strata News #167