Question: Our new strata manager declined to accept valid ‘enduring’ proxies previously recognised by strata managers for several years. Can the strata manager deny owners their right to vote?
Our new strata manager declined to accept valid ‘enduring’ proxies that have been previously recognised by strata managers and utilised without any issues for several years. The strata manager stated that the owners must resubmit these proxies using the strata manager’s specific proxy form. As a result, several owners who did not resubmit their proxies and did not attend the meeting were denied voting rights at the meeting despite being financial.
The strata manager has confirmed in writing that other strata managers and the State Administrative Tribunal (SAT) would accept these current enduring proxies. The contract agreement does not mention that owners have to submit new proxies on their forms. Can the strata manager refuse valid enduring proxies and deny owners their right to vote? Is this a breach of the strata manager’s duties?
Answer: A strata manager disregarding valid proxies without lawful justification may constitute a breach of their professional obligations.
In my opinion:
- Proxy Forms Are Records of the Strata Company: Proxy forms submitted by lot proprietors are considered records of the strata company, not personal or discretionary documents of the individual strata manager. As such, the acceptance, validity, and retention of proxy forms must be managed in accordance with the Strata Titles Act 1985 (WA) and related regulations, not at the preference or policy of a particular strata management firm.
- Validity of Enduring Proxies:
Under the relevant legislation, an enduring proxy remains valid until it is either:
- Revoked in writing by the owner who appointed the proxy, or
- The term specified on the proxy form expires.
Unless one of these conditions has occurred, the enduring proxy continues to be valid and must be recognised accordingly. It is not a requirement under the legislation that proxies be resubmitted solely due to a change in strata management or to conform with a specific template preferred by a particular strata manager.
- Potential Breach of Strata Manager’s Code of Conduct: Should a strata manager disregard valid proxies without lawful justification, this may constitute a breach of their professional obligations, including the code of conduct which requires a sound knowledge and application of the Strata Titles Act and its regulations. Owners may wish to seek independent legal advice regarding the potential implications of such actions and to ensure their rights are upheld under the legislation.
The above is not constituted legal advice; should the owners require further assistance or wish to pursue this matter formally, we recommend referring the issue to their legal counsel.
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.
This post appears in Strata News #741.
Marietta Metzger magixstrata E: marietta@magixstrata.com.au P: 08 6559 7498