These lot owners from QLD are wondering about body corporate voting rules. Frank Higginson and Todd Garsden, Hynes Legal provides the following responses.
Question: Can the body corporate pass an amendment or get something repaired with only three of the eight owners voting? What are the body corporate voting rules about this?
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Answer: If it is a general meeting vote and no one else votes against it, yes they can!
This post appears in Strata News #288.
Question: We are looking for information about the body corporate voting rules for a committee at an AGM who was elected without counting votes.
A committee, at an AGM, was elected without counting votes. Two people were nominated for Chairperson and two people for Treasurer. The same person stood for both positions but was ruled out by the current Chairperson because he was not financial at the time of lodging the nomination papers. This then affected all voting for the other positions on the committee. The majority of lot owners at the AGM asked for this to be reversed and a new election to be held.
To keep this brief can a committee that was not elected (votes not Counted) be removed and a new election made. What would the body corporate voting rules be and what would be required?
Answer: It is the same process to change the committee regardless of whether there was a ballot or not.
It is the same process to change the committee regardless of whether there was a ballot or not. An ordinary resolution at a general meeting can remove or replace any committee member. So if the committee is not supportive of calling that EGM an owner would need to consider requisitioning one (which needs 25% of owners to sign a letter of support).
This post appears in Strata News #223.
Question: The body corporate manager and current committee members are advising lot owners on “how to vote”. This does not sound like it will produce an unbiased result.
I have recently moved into an “over 50’s Strata Title apartment in Southport, Qld. The AGM is looming shortly and owners have received a mountain of paperwork including two secret ballot papers (blue) as well as the normal voting paper (yellow). This is confusing at best of times, more so if residents are sometimes well over 50.
The Body Corporate manager for the units has made herself available to assist residents with any problems they may need to have clarified. I feel this is a great help and very reasonable.
However, I would like to voice my concern that current committee members have also been at this event and I have seen more than one case of a committee member folding and putting a yellow paper into its envelope and sealing it.
Although I have NO idea what other involvement (if any) the committee members have had or if they have identified themselves as “just helpers” or “part of the committee”, I have a strong concern that this situation could well lead to collusion.
Are there any recommendations or rulings on this? What are the body corporate voting rules? Having ONLY a body corporate manager and current committee members advise on “how to vote” does not sound like it will produce an unbiased result. Could you please enlighten me.
Answer: Lot owners must be able to exercise their votes freely and enthusiastically.
Where it gets to is that owners must be able to exercise their votes freely and enthusiastically. That doesn’t mean that they cannot be assisted to do so, but there is a fine line between that and being stood over by interested parties.
We wrote a full newsletter on what the meant here: Topping up management rights agreements – the contest continues.
Anyone, including the current committee, is entitled to lobby owners to vote in a particular way. There is nothing that can prevent that.
In terms of the paperwork, while it may be confusing I very much suspect that it is what the BCCM Act requires, so while it would be better if things could be simplified, I suspect it is not possible.
This post appears in Strata News #221.
Question: Do I vote for every person standing for election, or just for the people I want? To comply with body corporate voting rules, should each box be marked/ticked?
We reside in Queensland. Our voting paper for the election of Body Corporate committee advised that there were 6 candidates for 5 positions. It did not state whether each box should be marked/ticked.
To comply with body corporate voting rules, does an authorised voter have to vote for every person standing, or just for the people they want? I have received some unofficial advice saying you only have to mark the boxes of whom you want, not everyone. I think this is a Federal law also.
Answer: In Queensland, you can vote for as few or as many people as you want.
This has nothing to do with federal or state voting laws. Those are parliamentary election specific.
In Queensland, you can vote for as few or as many people as you want.
If there was a Melbourne Cup field of candidates you could vote for all 24. You could also vote just for one.
What happens at the end of the days is all of the candidates have their votes tallied and the person with the most votes is guaranteed the first spot and so on down until all the positions are filled. If the last spot or spots are tied, then the position is determined by a method of chance determined by the meeting. My experience is that when it is two candidates it is a coin toss and where it is more we usually draw straws!
This post appears in Strata News #176.
Question: Can a Body Corporate Chairman tell other owners how to vote at the upcoming AGM? What are the body corporate voting rules here?
We have a situation where our Body Corporate Chairman has informed the other lot owners how he would like them to vote at the upcoming AGM. Is this a reasonable course of action or does it go against body corporate voting rules?
Answer: Yes. A committee member or a committee as a whole can make recommendations to owners about voting.
Yes. A committee member or a committee as a whole can make recommendations to owners about voting.
The one thing that an individual committee member needs to be aware of when doing so is to clarify whether they are doing that personally in their own right or as a member of the committee – the distinction being important as to who is actually doing the recommending.
Question: A motion was changed by the incumbent – What are the Body corporate voting rules? What happens now?
We recently provided a proposal for the body corporate management of a scheme in Queensland. Our agreement was submitted to the AGM via an Owner\’s motion. The incumbent body corporate managers are a large company, and there were five companies included in the motion for owners to vote on.
Following the AGM, we were made aware that the current Body Corporate Manager had amended our quoted price on the AGM voting paper and the accompanying explanatory note by increasing it.
I would think that this is fraudulent, but not sure if anything can be done about it. Any advice would be much appreciated.
Answer: Alternative motions are a constant source of conjecture.
The games people play….
Alternative motions are always a constant source of conjecture. What the Module requires is that if there is more than one motion lodged for a meeting and the motions propose alternative ways of dealing with the same issue that they be combined. The former way would have been to put the one you wanted up first and if it was passed, rule anything later out of order.
So in a body corporate management context, the first motion would be that ‘the body corporate engage a body corporate manager.’ If that was passed, the next motion would list the alternatives. Manager A, Manager B and so on. The body corporate manager that wins is the one that gets the most votes from those that voted ‘yes’ to the motion to engage the body corporate manager.
Having said all that, other than crafting the motions to make sure they fit with what the Module requires no one should change what was submitted. If a motion was changed by the incumbent (particularly if it was changed to less favourable (i.e. higher)) costing, then that would be completely inappropriate.
If the owner who lodged the motion thought that materially affected the vote then they would well and truly have rights to challenge that conduct in the Commissioner’s Office seeking that an EGM be called to put forward the motions as submitted.
Read next:
Todd Garsden
E: [email protected]
Frank Higginson
E: [email protected]
P: 07 3193 0500
W: http://www.hyneslegal.com.au
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Re Dec 12 comment regarding Auditor… The Auditor appointed last year has provided an auditor’s report with the upcoming AGM agenda papers together with an engagement letter. The auditor put forward by our BC managers has nothing attached, only a motion to appoint them.. and the auditor chosen last year is not on there as a second choice.
Your question….did the committee have the opportunity to approve the agenda? I am not sure about this, but I do know they are in league with Caretaker Managers and the Strata managers and act on their behalf not the owners. We will be attempting to vote in a new committee at the AGM on 18 December… and get new BC managers as current managers are closely associated with the Caretaker managers..
Hi Jennifer
This response from Todd Garsden:
There are a lot of assumptions being made – and a lot of it is going to depend on the committee’s instructions which we won’t know if the poster isn’t on the committee.
Admin: Please note we can only offer general information. For further details, we recommend you contact a strata lawyer.
Yes, we have an engagement letter and fees from another auditor approved in November last year. The auditor on this year’s agenda is employed by the Strata Group we are trying to get rid of.
Further voting question – I just got an email from our Caretaker Managers telling me how to vote for both the committee, stating names (who are the current inactive ineffective committee that we are trying to change) and motion to change our current Body Corp Managers whom we are trying to get rid of. I find this highly inappropriate – are they allowed to do this?
We have our AGM coming up soon and are hoping to vote out our dodgy Body Corp managers whose contract is almost up. The committee voted for a certain auditor to do the books last year. We have just noticed that the BC managers have put in their own auditor with no choices.. What can we do to add the auditor we want, or can we vote NO but then hold a special meeting in the New Year to put in a motion for the auditor we want… Please help with this question.
Hi Jennifer
We’ve received the following reply from Todd Garsden, Hynes Legal:
Was there ever another auditor put forward by an owner or the committee which did not make it to the agenda and did the committee have the opportunity to approve the agenda?
Thank you Nikki and Hynes – every vote will count, I will pass that on to others who have nominated. Unfortunately our current committee is not doing its job properly and in fact mainly inactive, and a few of us are trying to get a new committee on board who will work on behalf of the owners and not be in cahoots with our current caretaker managers who are not performing well at all and in fact were taken to court for ripping of tenants in the complex, tenants won. We also aim to change our Strata managers… Big job, but hope we can pull it off.
Our Body Corp AGM is coming up in a few weeks. I have nominated to be on the Committee. Can I vote for myself on the ballot paper.. ?
Hi Jennifer
This response from Frank Higginson, Hynes Legal:
Yes
Nikki (Admin): Good for you!
We had our AGM last week. The meeting was chaired by the BCM. The BCM turned to the Chairperson and said “Do you want me to do it.” The Chairperson replied in the affirmative. No valid reason was given for this. At the beginning of the meeting the BCM advised that there were no votes mailed in. I pointed out that this was not true. I was told that I should have sent my email to the BCM’s email address as opposed to the address listed in the Agend documents. When it came to voting for the Treasurer and Committee Members, the BCM took some ballot forms from the Chairperson and Secretary, as well as going around asking people in attendance to indicate who they wanted to vote for. There was no show of hands. She did not disclose the number of votes for each candidate. This is a Body Corporate that consistently fails to comply with the BCCM and Standard Module. There were defects and irregularities in how the meeting was called.
We have received this question via email:
Someone has nominated for chair of bodycorporate. There were 2 nominations, and one withdraws after nominations have closed. Does the ballot still go ahead or does the remaining candidate become the chair?
Frank Higginson, Hynes Legal responds:
The remaining candidate gets it by default – the same as if no one had nominated against them.
Does the president of body corporate has the right to be in charge of the body corporate fund or should it be in the hands of someone outside the corporate area
Hi Reno Martin
We have received this reply from Frank Higginson, Hynes Legal:
Who controls the funds of the body corporate is ultimately a decision for the committee. Normally the professional body corporate manager engaged by the body corporate would also have some authority to deal with the accounts from a day to day payment perspective.
What is the situation when a body corporate chairperson proposes that the committee assess the current body corporate manager against other body corporate managers to determine if we continue with our current manager. The chairperson now has a change of heart and abstained from a committee vote to seek capability statements from three body corporate managers, including the current one and seek approval at the next AGM to undertake this process. Would the chairperson abstaining from this vote preclude him from further decisions and making statements at the AGM regarding this matter and would further motions/resolutions require him to abstain?
Hi Philip
This response from Frank Higginson, Hynes Legal:
Unless the chairman has an actual conflict of interest, his abstaining from the first discussion / vote would not preclude him from participating in later ones. The key question is whether he does have a conflict, and the only way to know is to ask him.
Has Kate McLean (refer above) received an answer?
January 25, 2019 at 3:00 pm
Kate McLean says
January 25, 2019 at 3:00 pm
Qld.: Can you please tell me what the procedures are for a body corporate committee to do when an owner corresponds to the committee regarding a number of different issues e.g. resident caretaker not watering gardens, parking issues, etc. Does the committee need to acknowledge the receipt of his issues and that the issues will be submitted at the next body corporate meeting? Is there a time frame?
Reply
Thank you
Hi John
Yes. Please see the reply comment from Frank Higginson: January 25, 2019 at 3:18 pm
What the committee has to do is act reasonably. They don’t have to consider everything every owner throws at them, but if the issue is of a nature that ignoring it would not be reasonable then they should deal with it. This is the grey area that lawyers love.
If the committee doesn’t do what you think it should it is always open to you to look to submit a motion at the next general meeting requiring them to do whatever it is you want them to – assuming of course that the action you want would be a lawful one. If a committee is directed at general meeting to do something, then it simply has to do it.
Qld.: Can you please tell me what the procedures are for a body corporate committee to do when an owner corresponds to the committee regarding a number of different issues e.g. resident caretaker not watering gardens, parking issues, etc. Does the committee need to acknowledge the receipt of his issues and that the issues will be submitted at the next body corporate meeting? Is there a time frame?