These question came in from QLD Lot Owners enquiring about the eligibility of body corporate committee members. Thank you Todd Garsden from Hynes Legal and Amanda Hoy for providing the following response.
Question: Can a person who owns a hairdressing salon in the foyer of our building be a Body Corporate Committee member?
Can a person who owns a hairdressing salon in the foyer of our building be voted onto the Body Corporate Committee?
She doesn’t live in the building or own a unit here, just the shop.
Answer: Only owners of lots (not tenants) are eligible to be on the committee.
Only owners of lots (not tenants) are eligible to be on the committee.
However, if the owner of the hairdressing shop is a family member of another owner, has the power of attorney of another lot owner or the nominee of another lot owned by a corporation, they could be on the committee if they are nominated on behalf of that other lot.
This post appears in Strata News #257.
Question: Are there requirements for eligibility for body corporate committee members? Do they have to be Australian citizens OR reside in Queensland?
I’m wondering if a “Committee“ member of our body corporate is allowed to hold their position. This member lives in New Zealand and spends a few months of the year in their unit in Queensland, and the rest of the time back home in New Zealand.
Also, another owner lives on the “Road“, travelling in a caravan. They use an NSW address.
I read somewhere that you must be an Australian Citizen, and be a resident on the Queensland electoral roll or be within 65 KM of the Queensland border to hold a committee position? Is this correct? I am unable to locate the resource again.
What are the rules?
Answer: There are no requirements within the legislation for body corporate committee members in relation to residential or citizenship status.
There are no requirements within the legislation in relation to residential or citizenship status. The Body Corporate and Community Management (Standard Module) states that:
“(1) A person is eligible to be a voting member of the committee if the person is an individual nominated for membership of the committee by a member of the body corporate (the nominating entity) and is also—
(a) a member of the body corporate; or
(b) a person of the following category—
(i) if the nominating entity is an individual—
(A) a member of the individual’s family; or
(B) a person acting under the authority of a power of attorney given by the individual;
(ii) if the nominating entity is a corporation — a director, secretary or another nominee of the corporation;
(iii) if the nominating entity is the body corporate for a subsidiary scheme in a layered arrangement of community titles schemes — a representative of the subsidiary scheme.”
There are many schemes that do not have owners who reside either in the same state or even the same country as the scheme. With the technology that is available today, there is generally no need to have committee members onsite. Some of the most involved and valuable committee members I have worked with have resided overseas or have travelled regularly and have kept their finger on the pulse by keeping in regular contact with their Strata Manager, Onsite Manager and other Committee Members. It is possible to hold committee meetings entirely by electronic means using tools such as Skype, Online Voting programs, email, telephone etc.
As long as the Committee member(s) in question meet the requirements of the Code Of Conduct, ie:
- have a commitment to acquiring an understanding of the BCCM Act and the code
- act honestly and fairly and with confidentiality
- act in the body corporate’s best interests
- comply with the BCCM Act and the Code
- not cause a nuisance
- disclose a conflict of interest
there is no reason why the cannot hold a voting position on the Committee.
If your query relates more to how to engage with these owners or removing Committee Members who are not meeting their obligations (regardless of where they reside) we can also provide further information in relation to this.
This post appears in Strata News #115.
Question: New body corporate committee members are needed. How do we elect new members? Should it go to a general meeting?
If a committee has an elected committee of 4 and 2 resign, can the remaining 2 body corporate committee members elect new committee members? There are 26 units on the site.
If not, should it go to a general meeting?
Answer: Yes, the Committee can elect the two new members to fill these vacancies.
In this instance, yes, the Committee can elect the two new members to fill these vacancies.
Providing that the total number has not fallen below a quorum (being half of the voting members) then the remaining committee members can appoint the new Committee Member(s). They may still, however, chose to call a General Meeting if they do not want to appoint the body corporate committee members themselves.
If the number of voting members had fallen below a quorum then remaining body corporate committee members would then be required to call a General Meeting to fill the positions.
This post appears in Strata News #116.
Information from the Commissioner’s Site
The Body Corporate and Community Management Act 1997 sets out how you can nominate someone to be appointed to a body corporate committee, and who is eligible to be a voting member on the committee.
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Frequently asked questions – Removing and replacing committee members | Chris Irons, Commissioner for Body Corporate and Community Management
We get a lot of enquiries about the process of removing and replacing body corporate committee members. While the FAQs below provide some general information about these topics, it’s worth saying that merely removing and replacing a committee member is not necessarily going to solve all problems. We’d suggest taking the time to also think about the underlying issues at play and whether a new person in a role is going to address them.
Please note that all responses provided apply to the Standard Regulation Module. You should check the regulation module your scheme is registered under for the relevant information. As always, if you remain in doubt about these issues, we’d recommend you consider seeking qualified legal advice.
- A committee member has resigned. Do we need to replace them or can we just wait until the next annual general meeting (AGM)?
If a committee member resigns, they must be replaced. Within one month of the resignation the committee (if it can still form a quorum) can appoint a person who is eligible to be a voting member to fill the vacancy. Alternatively, the committee can call an extraordinary general meeting (EGM) to choose a person to fill the vacancy. If the committee no longer has enough members to form a quorum, it must call an EGM.
- If an executive member resigns, can another executive member take on their role on the committee and hold two executive positions?
Yes, an eligible voting member can hold two or three executive positions. That said, the committee will still need to fill the vacancy created by the resignation by appointing a person to be an ordinary member of the committee.
- We are having trouble with a committee member, can we just remove them?
A committee member can be removed by ordinary resolution at an EGM. It is important that there is a motion that also appoints an eligible person to the vacant position. It can be a part of the motion to remove the committee member or a separate motion.
- We have a committee member who has breached the code of conduct. What can we do about it?
If you’re alleging a committee member has breached the code of conduct (the Act, Schedule 1A) the body corporate can pass a motion by ordinary resolution to issue them a breach notice. This is a written notice of no more than 600 words identifying the breach and giving them a notice period of at least 21 days to give other owners a written response to the notice of no more than 600 words. The committee member can ask the body corporate to pay for their reasonable cost of distributing their response to other owners. After the notice period in the breach notice has ended, the body corporate then considers a motion by ordinary resolution at a general meeting remove the member from office. A copy of the breach notice must be included in the notice of the meeting considering the motion to remove the committee member.
- If a committee member is removed from office due to a breach of code of conduct, do we need to replace them?
Yes. The body corporate may appoint a person who is eligible to be a member of the committee to fill the vacancy at the same general meeting where the member is removed.
- We have called an EGM to fill a vacancy, but no one has nominated. Can we call for nominations from the floor?
Yes, if the meeting has been called to fill a vacancy, nominations may be made orally from the floor of the meeting. Nominations can also be made by hand, by post and by facsimile to a committee member so that the member receives the nomination before the election is conducted at the meeting. An owner of a lot must be physically present at the meeting to vote in the election.
- Most of our committee has resigned. We are going to call an EGM but no one is showing any interest to be on the committee. What happens if we can’t replace all of committee members who resigned at the EGM?
If an EGM is called to fill a committee vacancy, the agenda must also include a motion approving the engagement of a body corporate manager to carry out the functions of the committee. The motion will only be considered if, after the election to fill the vacant positions, at least one executive position is not filled, or the total number of voting members is fewer than three. If it is considered, the motion must be the last item of business for the meeting.
- One of our committee members doesn’t come to meetings or vote by proxy. Can they still be on the committee?
If a committee member is not present personally or by proxy for two consecutive meetings of the committee, without the committee’s leave, their position becomes vacant. You can then take steps to fill the vacancy. The requirement for the “committee’s leave” requires some positive approval or consent to the absence – not just mere notification of an absence.
- The chairperson has been convicted of drink driving offences. Can we remove him from the committee?
A position on the committee is automatically vacated if a member of the committee is convicted (whether or not the conviction is recorded) of an indictable offence. An indictable offence is a crime or misdemeanour that is more serious (like murder and assault), while simple offences (including traffic offences) are called summary offences. The body corporate may want to seek legal advice about whether a particular conviction is for an indictable offence.
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
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