QLD: Is a De Facto Partner Considered Family for Body Corporate Committee Eligibility?

This article discusses whether a de facto body corporate committee nomination is valid, explaining how de facto partners may qualify as family and when a power of attorney may be required.

Question: We are aware that family members can be elected onto the committee, however, is a defacto classed as a family member?

Our AGM (standard format plan) is coming up and a non-owner boyfriend of an owner has nominated himself or been nominated by his girlfriend (owner). She is calling him her “de-facto therefore family “ but he does not live in our complex. 

We are aware that family members can be elected onto the committee, however, is a defacto classed as a family member? Legally is he allowed to be on our Body corporate Committee?

Answer: Family includes spouse.

A non-owner can be nominated as a committee member if they:

1. are family; or
2. have been given a power of attorney by the owner.

Meaning of de facto partner

Family includes spouse and this issue was discussed in Q1 – [2015] QBCCMCmr 391 where the adjudicator relevantly provided:

[14] Section 36 and Schedule 1 of the Acts Interpretation Act 1954 provides the definition of the term “spouse”, which includes de facto partner and registered partner.

[16] Section 32DA (4) of the Acts Interpretation Act 1954 provides that “two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence”.

[17] Section 32DA of the Acts Interpretations Act 1954 states that when determining whether two person live together as a couple on a genuine domestic basis and who are not married to each other or related by family, the following circumstances may be taken into account, including, for example, any of the following circumstances—

1. the nature and extent of their common residence;
2. the length of their relationship;
3. whether or not a sexual relationship exists or existed;
4. the degree of financial dependence or interdependence, and any arrangement for financial support;
5. their ownership, use and acquisition of property;
6. the degree of mutual commitment to a shared life, including the care and support of each other;
7. the care and support of children;
8. the performance of household tasks;
9. the reputation and public aspects of their relationship.

To determine the above, the committee is entitled to ask for further information (such as the above considerations) to determine if the nominee is a spouse.

Alternatively, if a power of attorney was given, it would avoid the issues of needing to determine whether the nominee is a spouse.

This post appears in Strata News #568.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753