This article about body corporate communications during the Coronavirus crisis in QLD has been supplied by Jane Wilson, Acting Commissioner for Body Corporate and Community Management and Todd Garsden, Mahoneys.
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- QUESTION: Before proceeding to engage in electronic voting, does the body corporate need to call an EGM to approve electronic voting?
- ARTICLE: COVID-19 Communication for Bodies Corporate
Question: Before proceeding to engage in electronic voting, does the body corporate need to call an EGM to approve electronic voting?
I understand that some bodies corporate have effectively dispensed with AGMs and are now simply advising owners to vote online or lodge voting papers by hand, mail or email.
Even in this COVID era, with social distancing etc., is it permissible to dispense with AGMs in this manner?
Also, The Body Corporate Commissioner (Qld) has recently reminded us (with COVID-19 in mind) that “You can encourage owners to submit voting papers instead of attending the meeting personally (or to vote electronically if your body corporate has approved electronic voting) if your body corporate has approved electronic voting”. This is, of course, a requirement under the BCCM Act BUT some bodies corporate may not have approved electronic voting.
Before proceeding to engage in electronic voting, should those who have not approved electronic voting now move to rectify that situation by way of an EGM?
Answer: It would seem unnecessary as such a motion could simply be included on the agenda of the next general meeting.
As is the case with a number of issues – whether a general meeting is valid or not depends on the specific circumstances. The primary theme adopted by adjudicators is whether an owner’s right to vote was prevented and if so, would it have affected the result of the meeting.
Owners have a statutory right to attend and participate in general meetings. During the peak of the COVID restrictions, there was more flexibility afforded to bodies corporate in interfering with these rights. As restrictions are being relaxed, so too would the flexibility of bodies corporate interfering with these participation rights.
A body corporate can certainly recommend that owners vote in advance of a meeting without any real risk of reprisal.
It is really a question for the committee to determine whether it is worth the costs of calling an EGM just to approve electronic voting for the next AGM. It would seem rather unnecessary though as such a motion could simply be included on the agenda of the next general meeting.
This post appears in Strata News #379.
COVID-19 Communication for Bodies Corporate
Our office is receiving enquiries about how bodies corporate can carefully consider the impact of COVID-19 on their body corporate. This is not surprising given the nature of living in a community titles scheme.
Bodies corporate and residents should consider what steps may be appropriate within their scheme to look after the interests of all residents and workers in the scheme.
Bodies corporate and their committees have a statutory obligation to act ‘reasonably’. Actions taken in response to the COVID-19 pandemic need to balance the rights of individuals with the needs of other owners and occupiers and the broader community.
Considerations may include:
- Reminding all residents, workers and guests of the importance of practising appropriate hygiene (such as handwashing) and social distancing.
- Asking residents diagnosed with COVID-19—or who are required to self-isolate—to alert the body corporate so other residents can be informed and take appropriate precautions. You need to balance the requirement for reducing others’ exposure with the individual’s right to privacy.
- any restrictions on the use of common areas (including facilities such as pools and gyms), particularly for anyone who is diagnosed with COVID-19 or is required to self-isolate.
- It may be prudent for committees to avoid face-to-face meetings unless they are essential, and to practice appropriate hygiene and social distancing when meetings are held.
- There is no legislative reason why meetings cannot be held remotely; for example, by telephone, video conference, skype and similar technologies.
- The need for a quorum at meetings does not mean that committee members need to be present in the same room.
- A committee can also decide to vote outside committee meetings.
- Bodies corporate, particularly in larger schemes, can consider deferring calling general meetings unless there is urgent or essential business to consider
- Bodies corporate are able to seek approval from an adjudicator for annual general meetings to be held outside the legislative timeframe, and this may be an option to consider. Please read Practice Direction 19 for further information.
- Where meetings are held, it may be appropriate to encourage owners to only submit voting papers (or vote electronically in those bodies corporate that have approved electronic voting) rather than attending the meeting personally.
- While the legislation requires a minimum number of persons to be ‘present personally’ at a general meeting to form a quorum, this will generally only be one or two persons (depending on the size of the scheme).
- All other voters could submit written votes and potentially also participate in the meeting remotely (for example, by telephone, video conference, skype or similar technologies) if the body corporate is able to facilitate such participation.
- Provided that bodies corporate make reasonable endeavours to comply with the legislative requirements for holding general meetings, instances of non-compliance that do not affect the voting outcomes will be unlikely to affect the validity of meetings.
- The statutory capacity to approve expenditure above the committee spending limit with the written consent of all owners, may reduce the need to call a general meeting in some cases, particularly in smaller schemes.
- In schemes registered under the Small Schemes and Commercial Modules there is also a capacity to approve any general meeting motion with a vote outside a meeting.
Maintenance of common property
- A body corporate must maintain common property in good condition.
- The body corporate may need to consider the need for additional cleaning of common areas and facilities if necessary.
The Office of the Commissioner for Body Corporate and Community Management
As a temporary measure, the Office of the Commissioner for Body Corporate and Community Management will conduct all conciliations via telephone to prevent any face to face contact or the need to travel on public transport for our clients. Otherwise it is business as usual and any changes to the status of the Office will be communicated via our Common Ground e-newsletter subscription, website and DJAG social media accounts.
For general body corporate information, contact the Commissioner’s Office on 1800 060 119 or www.qld.gov.au/bodycorporate.
Information Service Freecall 1800 060 119
Acting Commissioner for Body Corporate and Community Management
This post appears in Strata News #330.
This article has been republished with permission from the author and first appeared in the BCCM Common Ground newsletter.
Have a question about handling the Coronavirus crisis in a QLD body corporate or something to add to the article? Leave a comment below.
- NAT: Coronavirus & Strata – What Does the Legislation Say? Not Much
- NAT: Apartment Owners Ask: Do We Still Need To Hold Meetings In Person?
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