Question: Two related parties on our four member council consistently block necessary works by creating tied votes. Can the other two members exclude them from decision making?
Our Western Australian strata complex has a four-member council of owners (CoO) where two members are related. This related pair consistently blocks necessary works by using their voting power to create ties.
To overcome this, the other two CoO members have started working directly with the strata manager, excluding the related pair. This approach is more efficient for completing maintenance and other tasks. The related pair claims this is illegal. Is it against the Strata Titles Act 1985 to exclude CoO members from decision-making processes? When there is a tied vote, how are decisions made?
Answer: In the future, an uneven number of members would assist decision making.
To obtain an answer to your questions that is specific to your scheme would require a review of the by-laws that apply to your strata company. The below answer is based on the Standard by-laws contained within the Strata Titles Act 1985 as of the 01 of May 2020.
Schedule 1 Governance by-law 8 (1) requires that at a meeting of council, all matters must be determined by a simple majority vote. On a council of four, a majority vote would be 3. A tied vote does not pass.
Regarding the exclusion of any member of council from decisions, the only time I consider this to be acceptable would be at a meeting of council to which all members have agreed to the date, time and agenda or one member has given at least 7 days’ notice of the date, time and agenda to all other members and at which a quorum is present. In this instance, the exclusion of any member not in attendance on decisions on the agenda would be acceptable.
Further consideration should be given to section 137(2) which states:
- A person to whom this section applies —
- must at all times act honestly, with loyalty and in good faith in the performance of functions as a member of the council or an officer of the strata company; and
- must at all times exercise the degree of care and diligence in the performance of those functions that a reasonable person in the person’s position and the circumstances of the strata company would reasonably be expected to exercise; and
- must not make improper use of the person’s position —
- to gain, directly or indirectly, an advantage for the person or any other person; or
- to cause detriment to the strata company.
In circumstances where council fails to make decisions or becomes dysfunctional, it is always good to remember that a general meeting of the strata company has the power to instruct council. In this circumstance, I encourage calling a general meeting of the strata company to decide on any unresolved matters and, if necessary, re-elect the council. An uneven number of members would assist in decision making going forward.
This post appears in the August 2024 edition of The WA Strata Magazine.
Luke Downie WA Strata Consultant E: Email P: 0456 589 639