Question: How can a disruptive committee member be removed and prevented from rejoining? Can a chairperson make decisions if other owners are inactive?
I’m a newly self-appointed chairman and secretary in an 8 unit complex.
Our treasurer does not communicate with me. They annoy neighbours, cause dramas and talk down to residents. They continually make numerous improvements without prior approval, then submit requests to have them approved. I am in the process of applying to the BCCM on one of the issues. What would be the easiest way to remove this owner from the committee and also disallow this person from being allowed on the committee again due to their disruption of the complex?
What do you do if no other committee member wants to be involved in any decision-making? I nominated the three people on the committee because we needed the numbers, even though they had no real interest in being involved. Am I able to make decisions about quotes and timelines to do things on my own?
Answer: In a small scheme, particularly, removing an owner from the committee doesn’t remove them from your life.
The simplest way to remove a member from the committee is to call an EGM and vote on having them replaced by another owner/eligible person.
To do this, you would need to have another candidate lined up to fill the position and would likely need to rally the other owners to vote in the way you hope – they may or may not agree with your position.
An alternative would be to have the owner removed from the committee for a breach of the code of conduct. All committee members are signed up to the Code of Conduct once they volunteer. If you think someone is in breach of this, you can make an application to the Commissioner’s office to have them removed. Generally, this method is considered more complicated and lengthy to achieve than the EGM path, and, as far as I know, it is rarely applied in practice.
What you need to consider is that either option is likely to be messy and unlikely to resolve your problems. You can remove the treasurer now, but they are still entitled to nominate at the next AGM, and with seven positions available and eight units in the complex, they would be reappointed in most circumstances. There is no way to remove someone from the committee permanently. However, bans for a period of time are probably something the legislators should look at given the increasing disturbance some individuals can cause to schemes.
Even if you do remove the committee, the treasurer will still be an owner at the scheme. Any action you take will not get rid of them. Indeed, it is likely that any action you take will increase the level of antagonism between you. Eight owners are a small group, and so to some extent, you need to accept that you are stuck together while you both own in the scheme. This doesn’t mean you have to accept wrongdoing on the part of the other owner, but removing them from the committee doesn’t remove them from your life.
Without knowing all the details, your best solution may be to bolster your support from other members of the committee. It sounds like you have four or five in your current group. If you can get those people to vote and say yes or no to proposals, you can get to the point where you always have a voting majority of perhaps 3–1 or 4–1 and can make committee decisions that way. It’s not an ideal way to operate, but if you can get that level of support, then it can be a functional way to operate.
As you indicate, though, it is hard to get the interest. Owner apathy is one of the biggest drags on body corporate management. It’s challenging to overcome, but it’s essential to discuss with other owners that if they don’t participate in the process, they risk hurting their financial investment and increasing their liability risk. It’s not always easy for people to understand this, but that’s the reality.
In practice, if it is just you making the decisions, it can be tricky. At some point, the body corporate has to get on with it. A good way to manage this is to provide timelines around decision-making and to hold more formal votes. I expect you are making some decisions over email, so for timelines, you might write things like:
- “Please advise yes or no by COB Thursday. If no reply, I’ll assume your answer is yes and will proceed accordingly.”
Maybe you could set up a voting app that would help the committee members respond to this type of issue. Some management agencies provide tools like this, but there are also plenty of online options. If necessary, have more VOCs and committee meetings to get things done. Have a few more Zoom meetings, if that will help. There is no one-size-fits-all answer, but try experimenting to see if you can improve engagement.
As a side note to this conversation, one further legislation change that should be considered would be to extend the limit for the number of units in a small scheme to 8, 10, or 12 units from the current six. Legislators have started acknowledging the problems with voter apathy by allowing the lowering of quorums. Still, it would be good to see more thought put towards extending these ideas to allow for more practical management rather than tying owners up with out-of-date legislation.
Lastly, it sounds like you are doing the right thing by taking the treasurer to the Commissioner’s office for unapproved renovations. It’s possibly OK in most circumstances to make one approval after the fact. Sometimes people aren’t clear on the rules or their consequences, and the key thing is to get the changes on the record. However, after the first time, the applicant can’t say they are unaware of the process, making the action deliberate. It may not seem important to them, but some people only learn the hard way, so taking the matter to conciliation/adjudication to make your point clear seems like a good step.
This post appears in Strata News #752.
William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924
If a body corporate committee has five elected members and one of them resigns, can the remaining four members elect a new member by voting outside a committee meeting (VOC)? Does this mean that the committee can choose any eligible owner as the new member without following the nomination and voting process by all the owners? If so, what is the purpose of electing committee members in the annual general meeting (AGM) by a secret ballot that requires the nomination and voting by all the owners? Since the committee could easily arrange anyone into the committee in the case of the resign of any existing committee member. Is this a legal process called ‘filling the vacancy’? Shouldn’t the committee notify all the owners of the VOC and allow them to nominate themselves or others for the vacant position? Shouldn’t there be a vote if there are more than one candidate?
Hi Pronyt
The response to this Q&A should assist:
Question: Can a committee member resign on the condition that her brother, who is a co-owner, replaces her?
Unfinancial committee member re elected – the ‘Sundry Debt’ was in relation to a shared expense between the lot owners and the Body Corporate. So I again ask what effect would non valid committee members voting on things during the year have, even if only retrospectively?
Hi Loris
What was the nature of the shared expense? Even if the shared expense was a body corporate debt (which I am unable to confirm) this would have no impact on retrospective decisions if they were made more than 3 months ago or the exclusion of that lot owner’s vote wouldn’t have changed the ultimate outcome.
Hi Todd, the debt was in regards to shared expense of a boundary fence, which affected 3 committee members – chairperson, treasurer & secretary. There are 7 on the committee. As the executive members have ‘influence’ over ordinary the members who are not as active on the committee, it is quite possible many decisions and the guidance for the year could have been quite different.
As owner residents as opposed to holiday letting investors we are in the minority in our large class 2 building. Our strata fee is $300 per week for a small 2 bedroom apartment as a substantial loan for building upgrades needs to be paid off for the next 7-8 years. Continuing upgrades mostly relate to ‘resort’ facilities. Are we entitled to know by declaration the committee members who also own investment units? Thank you.
Hi A.
Todd Garsden from Mahoneys has responded to your comment on this article: QLD: Q&A Can I Access Body Corporate Records?
Thanks Liza, sorry it took so long to reply, have been seeing to an ill parent. Will read the article. Thank you.
We are 3 years into our new residential build. Our building had its first ever fire and safety audit last year and over $100k in defects were identified which ended up being lodged with QBCC. DTRs were issued, however the builder didn’t complete all DTRs leaving substantial costs to lot owners to wear.
An EGM was recently held and 13 of the 17 owners voted to take the case to QCAT to have it mediated, but the developer who owns 6 units was able to vote the special resolution down single-handedly. He refuses to believe the independent auditors have it right and has indicated to the committee and owners that this is a witch hunt and will not support any committee action to either pursue the builder through QCAT or raise funds to repair the defects directly. Our committee is inexperienced and unsure of what our next steps should be to try and get the building compliant.
Hi Victoria
Chris Irons, Hynes Legal has responded to your question in this article: QLD: Q&A Who Do We Pursue for Building Faults in our Strata Scheme?
How to stop a committee member who is the secretary being removed from the committee
Hi Alan
The following response has been provided by Chris Irons, Hynes Legal:
Voting at body corporate elections is like voting in any other election – it’s a numbers game. If you don’t have the numbers, you don’t get up. A committee member can be removed by ordinary resolution at a general meeting and if that resolution passes, the secretary can be removed. The secretary’s term can also cease under certain circumstances, e.g., being convicted of an indictable offence.
If you think that the motion or meeting for removal of the secretary has been invalidly or improperly called, that’s a different story and you may have grounds to challenge outcomes. You’d need to have grounds to support that and you may also need to seek some legal advice.
Is it a conflict of interest or considered “unreasonable” by the BCCM when the Owner of Management rights, a paid service contractor caretaker letting agent successfully nominates and lobbies for his letting pool recipient Lot owners only ever elected BC voting committee members each year or at any General meetings?
If the original By-Laws (2002) allocated a specific area in the Building for “exclusive use’ of an area marked “A” which is a room housing electricity meters for all residential Apartments in the building as well as a linkup to the NBN and other utilities such as telephone and electricity can this Area A also be used by the Building Manager/Caretaker for his own use to store furniture relating to the 8 rental Apartments he looks after in his rental properties within our Building? (on reading his Contract with the Body Corp should our Committee allow his storage and continued use (because of our Insurance fire hazard situation)? Our Building Manager resides in another Scheme Apartment development within the same precinct as us.
Hi Jen
The following response has been provided by Frank Higginson, Hynes Legal:
An exclusive use by-law will usually dictate what the area can be used for. After that, as long as the use is consistent with the grant, then that’s the deal
Loohkup Strata No 369 received this morning. It always appears to be about Committee Members who volunteer their many hours to try to run their Complex efficiently and to achieve a good Financial State – like a healthy Sinking Fund with all Maintenance done as needed and at the best price. 2 Committee Members have been on this Committee since these Nuisance Owners bought their Unit.
We changed B.C. Management early in the piece because they did not help Committee with advice over a Problem on Site.
We have changed B.C. Management again, after 10 different Managers who could not deal with these Nuisance Owners.
We updated our BY-LAWS 12/02/2019 in the hope that we could get some relief with these Problem Owners- Nuisance.
They not only harassed the Committee but also abused B.C. Management often. Current B.C. did not help Committee and Owners so after 10 years have gone to a New B.C. Manager.
This is but a very small insight into what the Committee has to put up with.
Hi Irene
The following response has been provided by Chris Irons, Hynes Legal:
It certainly seems as though the committee in your case in dealing with a lot of issues.
Important to firstly clarify a few points. Body corporate managers have a role as defined in their contract with you as the body corporate. That role isn’t necessarily to give the committee advice or to deal with nuisance people. That’s up to the committee to manage in both cases.
Secondly, you say that you have had the by-laws updated late last year. That’s good, but it’s not clear what the update was or what has happened since then. If you’ve got by-laws to deal with nuisance, and a nuisance is happening, then you need to enforce the by-laws.
Depending upon where things are at with the particular lot owners, you might now want to seek some advice about what to do next. There are actually several non-legal solutions available to you to deal with this problem. Our firm recently held a webinar on dealing with nuisance people, which you can view on our Facebook page.
I agree with you that being on a committee can sometimes be a thankless task and especially given it is, as you say, a volunteer role. The fact you are making this comment tells me you are still committed to the task, which is great but you now need to follow through with action. Otherwise, and as you are probably starting to realise, the situation will keep on going, unchanged.
I am a tenant can I be nominated by owner to be on the committee
as he is not able to be
We received a question via email from a QLD lot owner:
Can a Chairperson & Secretary (same person) be also a committee member?
We received the following reply from Todd Garsden, Hynes Legal:
Executive members are members of the committee but a person cannot be both an executive member and an ordinary member.
We received a question via email from a QLD lot owner:
Can the owner of one lot in a Body Corporate nominate themselves for the position of Secretary and ordinary member of the committee at the Annual General Meeting?
We received the following reply from Todd Garsden, Hynes Legal:
They sure can – they can go for all positions if they wanted to.
The crucial thing here is to understand the differences in ‘ nominating and taking up ‘ a position in a Committee.
Q: Can the owner of one lot in a Body Corporate nominate themselves for the position of Secretary and
ordinary member of the committee at the Annual General Meeting?
A: Sure they can nominate for all available Positions ( Chair/Secretary/Treasurer/Member ) at same time.
However, in the end they have to decide which position to take .
A: Executive members are members of the committee but a person cannot be both an executive member
and an ordinary member.
Q: Can the owner of one lot in a Body Corporate nominate themselves for the position of Chair/Secretary
and Treasurer at the Annual General Meeting?
A: An executive member can take up all 3 Office Bearer Positions ( Chair/Secr/Treas/) if voted in
by majority or no other Candidates available.
However, as an executive member he/she cannot be an ordinary member at same time.
Question Time:
I would like to ask the following questions:
a; A Unit Owner as an ordinary Member has 1 Vote, right ?
b: A Unit Owner as an executive Member has 1 Vote, right ?
c: A Unit Owner as an executive Member holding the Chair and Secretary and Treasurer Position has
‘ How many Votes’ ??
Hi Luther
The following response has been provided by Chris Irons, Hynes Legal:
I’m not sure if you are asking questions or offering your own responses to the previously-made comment. If you’re asking questions, then they seem very specific and a bit beyond the scope of the general information that tends to get provided here. You might need specific advice on that.
Whilst committee member citizenship or residency isn’t an issue for our building, we’re in a frustrating situation where 4 out of 7 committee members are comprised of 2 married couples who are all good friends.. A number of apartments are owned by people within the one family (eg. husband owns one apartment/wife owns another) meaning they can vote for each other or nominate themselves for committee positions with the support of family and friends. The committee members then vote as a bloc on various matters and hold considerable power when it comes to matters requiring voting on by all owners. Suspect there’s nothing much we can do except lobby other owners very hard to support non-associated committee nominees.
That’s right – assuming the nominations have been properly made.
The other thing to remember is that all body corporate decisions must be reasonable – so if any decisions by the bloc are unreasonable they can be overturned