WA: Can the chair refuse by-law required maintenance without council approval?

Question: If our by-laws require annual window cleaning, can the chair decide to forgo this maintenance without confirming with council members?

Our by-laws require annual cleaning of the building’s common area windows. A member of our council of owners requested that the chair hire a window cleaner using the cleaning budget. The chair refused. Does the chair have authority to deny required maintenance without confirming approval from council members?

Answer: The chair’s authority to make unilateral decisions without consulting other council members is typically limited and must align with the by-laws and the Act.

As a strata manager, it’s important to address the situation by referencing the Strata Titles Act 1985 (Act) and the applicable by-laws, ensuring a clear understanding of the roles, responsibilities, and procedural requirements involved.

Understanding the Role and Authority of the Chair

The chair of the council of owners has specific duties and powers, often including presiding over meetings and ensuring that decisions are implemented. However, the authority to make unilateral decisions without consulting other council members is typically limited and must align with the by-laws and the Act.

Relevant Provisions in the Act

1. Council of Owners’ Responsibilities: Section 135 of the Act outlines the functions and powers of the council of owners. The council is responsible for performing functions and exercising powers on behalf of the strata company. Decisions regarding the maintenance and upkeep of common property generally fall within the council’s purview.
2. Decision-Making Process: Section 138 details the procedures for council meetings, including the requirement for a quorum and the process for making resolutions. Decisions should typically be made by a majority vote unless otherwise specified in the by-laws.

By-Laws and Budget Considerations

1. By-Laws: Your by-laws explicitly require annual cleaning of common area windows, indicating a clear obligation. By-laws are legally binding, and adherence is not discretionary.
2. Budget: The existence of unspent funds allocated to cleaning in the budget further supports the need to fulfil this obligation. Once approved at a general meeting, the budget reflects the collective decision of the owners and should be adhered to unless an alternative resolution is passed.

Analysis of the Chair’s Decision

1. Compliance with By-Laws: The chair’s decision to reject the request to engage a window cleaner appears to contravene the by-laws. Since the by-laws mandate annual cleaning, failing to execute this requirement could be considered non-compliance.
2. Council Approval: According to standard strata governance practices and the Act, the chair should not unilaterally reject a request without seeking the approval of a majority of council members, especially for matters explicitly required by the by-laws and budgeted for.
3. Possible Implications: Unilateral action by the chair without consulting the council could undermine the collective decision-making process and lead to disputes or non-compliance with statutory and by-law requirements.

Recommended Actions

1. Council Meeting: Convene a council meeting to discuss the matter. Ensure that all council members are informed of the by-law requirement and the available budget funds.
2. Majority Vote: Put the matter to a vote. A majority decision should be obtained to proceed with the window cleaning. Document the decision in the meeting minutes.
3. Communication and Resolution: Communicate the council’s decision to the chair formally. If the decision is to proceed with the window cleaning, direct the chair to engage the window cleaner as per the by-laws.
4. Review and Amend By-Laws if Necessary: If there are recurring issues with decision-making authority, consider reviewing and possibly amending the by-laws to provide clearer guidelines on the roles and limits of the chair’s authority.

Conclusion

In summary, the chair should not unilaterally reject a request for services mandated by the by-laws and funded in the budget without seeking approval from the council of owners. It is recommended to address the matter through a formal council meeting and ensure adherence to the Act and the by-laws.

This post appears in Strata News #706.

Rick Blampey
SVN Perth
E: rblampey@svn.com.au
P: 08 9427 7955