WA: Can a strata council member vote if they are unfinancial in WA?

Question: In WA, can a strata council member vote at a regular council of owners meeting (not AGM) if they are unfinancial? The WA legislation doesn’t seem clear.

Answer: If you are unfinancial and get elected to council, you have a vote the same as any other council member.

The conditions on who can vote are limited to the following:

At an AGM or EGM if you are not “financial” [entitled], you cannot vote unless the motion requires a unanimous resolution or a resolution without dissent.

You cannot vote on motions requiring an ordinary resolution or special resolution or nominating anyone else to be elected to the council if you are not financial. See section 120(2)(a) and (b) Strata Titles Act (STA).

You can, however, still be unfinancial but be nominated to council by someone else who is financial.

If you are unfinancial and get elected to council, you have a vote the same as any other council member.

All voting at council meetings where decisions are made are passed by a simple majority vote.

See Schedule 1 Governance by-law BL8(1)

8. Meetings of council

1. At meetings of the council, all matters must be determined by a simple majority vote.

Unless section 134 STA applies.

134. Performance of restricted council functions in general meeting

If, by ordinary resolution of a strata company, the council of the strata company is prohibited from performing a function, the function may be performed by the owners of lots in general meeting of the strata company.

Or section 135(1) applies.

135. Functions and constitution of councils

1. The functions of a strata company, subject to this Act and to any restriction imposed or direction given by ordinary resolution, are to be performed by the council of the strata company.

A member of the council can only appoint another owner to take their place at a council meeting.

See Schedule 1 Governance by-law BL8(3)

3. A member of a council may appoint an owner of a lot, or an individual authorised under the Strata Titles Act 1985 section 136 by a corporation which is an owner of a lot, to act in the member’s place as a member of the council at any meeting of the council.

After some of the meetings that I have heard about going to the Tribunal, the key takeaways are:

1. Have a list of who is financial before the AGM commencing.
2. Ensure all owners are fully informed about the voting requirements for the resolutions being voted on.
3. That you record a list of names / Lot numbers that voted for or against the motion.
4. Check who is nominating people to be elected to the council.
5. Maintain a list of the nominees for election, whether you had to have a ballot and the results.
6. All ballot papers need to be retained as records of the strata company.

Hopefully, this will avoid nominations from people who are unfinancial and not entitled to nominate others.

This post appears in Strata News #656.

Shane White
Strata Title Consult
E: shane.white@stratatitleconsult.com.au