This article about how unit entitlements are calculated has been supplied by Strata Community Association WA.
Table of Contents:
- QUESTION: How have voting procedures and vote counting at a general meeting changed with the amendments to the Act?
- QUESTION: If I own 3 units, what are my voting rights at an AGM or any meeting?
- QUESTION: Is the vote of a Chairperson worth more than other votes? Does the Chairperson have a casting vote?
- QUESTION: Our strata is made up of both residential apartments and a resort. Every decision is squashed by the majority vote of 80% in the resort by one company.
- QUESTION: With the 28 day voting process, if all members had voted pre and at the meeting, does the voting period closes at the end of the meeting?
- QUESTION: In a commercial strata situation, how are unit entitlements calculated? Is it a vote per unit owned or a vote per owner?
Question: How have voting procedures and vote counting at a general meeting changed with the amendments to the Act?
Is the following clause 8 in Schedule 1 by-law 12 still the case following the new strata title amendments?
Proceedings at general meetings
Unless a poll be so demanded a declaration by the chairman that a resolution has on the show of hands been carried is conclusive evidence of the fact without proof of the number or proportion of votes recorded in favour of or against such resolution.
In LookUpStrata’s recent article on Votes and Voting, you quote clause 11 from the old Strata Titles Act (STA). Schedule 1 Bylaw 12 Clause 11 states:
Proceedings at Special Meetings
“In the case of equality in the votes whether on a show of hands or on a poll, the question is determined in the negative.”
Is this still the case in the amended STA? And does this apply to Council of Owners meetings too?
Answer: The only times that a request for voting to be counted as per unit entitlements “may be requested” is for a Special Resolution or an Ordinary Resolution.
The amendments to the Strata Titles Act 1985 were approved on 20 May 2020.
Articles written prior to the amendments to the Act were correct when they were written.
A careful study of the amendments to the Act indicate that all Schedule 1 By-laws from By-law 11 to 15 were deleted and are now included into the Act itself.
“Poll” voting is now included in the Act and hidden away in section 122 where it is not referred to a POLL vote but expressed as vote that is demanded to be counted by the unit entitlements .
122. Counting of votes
- Votes are to be counted (and recorded) as follows —
- for a unanimous resolution or a resolution without dissent, the votes must be counted by the number of votes cast;
- for a special resolution, the votes must be counted both by the number of votes cast and by the number of unit entitlements of the lots for which votes are cast;
- for an ordinary resolution, the votes must be counted by the number of votes cast unless any person entitled to cast a vote demands that they be counted by the number of unit entitlements of the lots for which votes are cast, in which case, they must be counted in that manner.
- A demand that a vote be counted by the number of unit entitlements of the lots for which votes are cast can be made —
- if the vote is being taken at a general meeting, orally or in writing before the resolution is put to the vote; and
- if the vote is being taken outside of a general meeting, when the vote is cast.
- Such a demand may only be withdrawn by the person who made the demand.
The only times that a request for voting to be counted as per unit entitlements “may be requested” is for a Special Resolution or an Ordinary Resolution.
Careful consideration must be given to the practicality of such a request as it may extend the meeting to several hours.
It is up to the Chairman to make the call that the vote is carried on the basis of the number of votes received. It would be good meeting practice to record the number of votes in favour.
There are more current articles available about this topic.
This post appears in Strata News #518.
Question: If I own 3 units, what are my voting rights at an AGM or any meeting?
Are you able to advise me if an owner in a Survey Strata Title’s Village owns 3 units what is their voting rights at an AGM or any meeting do they have the right to have three votes? the act is a bit confusing so we want to be sure to advise the owner it is a vote per property that the owner would have 3 votes or it is a vote per owner would be one vote.
Answer: As with any strata scheme, if you have 3 Lots you have 3 votes.
As with any strata scheme, if you have 3 Lots you have 3 votes.
The Unit Entitlement (UE) values for a strata scheme are based on the capital improved value whereas the in a survey-strata scheme the UE is based on the unimproved land value.
When voting an owner may request that the counting of any votes is done by adding up the UE value of each Lot prior to the vote being put. In most instances the voting would be done by a show of hands unless a “Poll Vote” has been requested.
The counting of poll votes can be very time consuming especially for very large strata schemes.
This post appears in Strata News #511.
Question: Is the vote of a Chairperson worth more than other votes? Does the Chairperson have a casting vote?
Is the vote of a Chairperson (at either a General Meeting or a Council of Owners meeting) worth more than a non-Chairperson’s vote?
Does a Chairperson (at either a General Meeting or a Council of Owners meeting) have a casting vote, if there are equal votes on either side?
Answer: At a general meeting, all votes are equal regardless of the office any owner may have been be elected to
Under the Strata Titles Act (WA) 1985, I’m pleased to confirm that when it comes to voting at a general meeting, the chairpersons vote is not worth more than any other owner within the strata scheme – all votes are equal regardless of the office any owner may have been be elected to.
That said though, care needs to be taken in the following circumstances:
- For an Ordinary Resolution (a simple majority vote) – the meeting needs to know if the chairperson is only representing their own lot at a meeting, or if they happen to be holding a proxy/proxies of other owners (i.e. they may in fact be casting more than one vote as a representative of their own and of other lots, but a chairpersons vote itself is not a ‘weighted’ or ‘casting’ vote).
- For a Special Resolution, the voting will be according to Unit Entitlement, meaning some votes cast a general meeting are not simple equal votes like those cast for an Ordinary Resolution. A Special Resolution should be detailed as such in the meeting agenda for a general meeting.
- An Ordinary Resolution (a simple majority vote) applies at all Council Meetings (i.e. Unit Entitlement does not apply at Council meetings – it’s always one vote per Council member or proxy holder).
Under the Strata Titles Act (WA) 1985, I’m also pleased to confirm that the chairperson does not have a ‘casting vote’. In the event of a tied or equal vote the result is always in the negative (i.e. the motion fails – it is not passed) so it’s important to frame motions in the agenda accordingly (i.e. “To resolve to…” or “To resolve not to…”).
This post appears in Strata News #505.
Question: Our strata is made up of both residential apartments and a resort. Every decision is squashed by the majority vote of 80% in the resort by one company.
Our strata is made up of both residential apartments and a resort. My unit is in the residential part with a resort that backs onto it.
The resort units are owned by individuals but 80% is owned by the company who purchased the resort.
The residential units are all owned individually.
The problem is the very high strata fees the residential owners pay. Each time we want to discuss having these fees reduced, the majority vote of 80% in the resort by one company, overrides all residential votes.
No matter what we want, if it doesn’t suit the majority owner – this is voted out.
This is so frustrating, as it is as though the residential owners have no say whatsoever unless it agrees with the majority owner’s vote.
Is there anything we can do to balance this out where the residential owners have a voice that counts?
Answer: With the introduction of the Community Titles Act later this year (2021), hopefully better management plans can be put in place to avoid these conflicts.
These conflicting uses within schemes always generate conflict. With the introduction of the Community Titles Act later this year (2021), hopefully better management plans can be put in place to avoid these conflicts.
Around this particular matter, in the end section 137 details general duties and conflicts of interest regarding a council member. At all times, they have to act honestly and in good faith, take due care and diligence and must not make improper use of their position to benefit. It’s a very tight line that has to be walked around the management of this scheme. Ultimately, if they are one owner, they can only hold one position on the council. So what it really comes down to is working with the residents around the election of the Council of Owners and trying to get good representation on the Council of Owners to be able to have better informative discussion around the management of the scheme. That’s probably all you can really do there.
When you buy into the scheme, you’re presented with the bylaws and you’re presented with the budget. There is an expectation that you do your due diligence when you buy in. In these types of schemes, you do find that the levies are quite high, but they need to be equitable and they need to be apportioned appropriately.
The only advice I can give here is that the reader should try to get better but better representation on the Council of Owners.
This post appears in Strata News #501.
Question: With the 28 day voting process, if all members had voted pre and at the meeting, does the voting period closes at the end of the meeting?
The WA legislation talks about a 28 day voting period. With the 28 day voting process, if all members had voted pre and at the meeting, does the voting period closes at the end of the meeting?
If, however, not all votes were received but the resolution still passes at the meeting due to the required numbers, are the subsequent votes invalid and recorded although they could not change the resolution?
Answer: If all proprietors have cast their vote, that motion is deemed to be carried at the meeting and the allowance of a further 28 days may not be applicable.
Regarding a Resolution without Dissent, Special or Unanimous Resolutions being a resolution on which every person in the scheme who is entitled to vote is to vote either in person, by proxy or in writing within 28 days after the meeting, generally the process is that the motion stays open as such for voting proceeding the meeting date for a period of 28 days before the motion is effectively “carried”. In the case whereby all proprietors have cast their vote and it has been recorded as such, then it would be my opinion that the motion is deemed to be carried at the meeting and the allowance of a further 28 days may not be applicable.
However, there is no provision in the Strata Titles Act specifically referring to a situation like this, so it is open to interpretation by the wording of the legislation. Given the wording as shown below under Section 121‘s intention as it appears is to have the 28 days period solely for the purpose of proprietors not in attendance to cast a vote, one may reasonably conclude that since all votes have been cast the 28 days is no longer required/applicable to deem the motion as carried. This is up to legal interpretation and possibly depends upon what type of motion is being passed, i.e. termination motion or re subdivision motion, or is it just a simple by-law change or structural application etc? So, it may depend on what section of the Strata Titles Act WA and Regulations WA the motion that’s being sought is governed by. Proper legal opinions should be obtained based on the nature of business being sought to be passed by the strata company would be my advice on how to proceed in events such as this.
STRATA TITLES ACT 1985 – SECT 121
121. Voting period
- If a resolution is required to be a unanimous resolution, resolution without dissent or special resolution, the period allowed for voting must be 28 days or, if the regulations specify some other period, that period.
- If a vote on a resolution that is required to be a unanimous resolution, resolution without dissent or special resolution is taken at a general meeting —
- the voting period opens at the meeting and closes 28 days (or if the regulations specify some other period, that period) after the meeting; and
- if, for 1 or more lots, there was no-one present at the meeting in person or by proxy who could cast the vote attached to the lot — written notice of the outcome of the vote at the meeting is given to the owner of each such lot; and
- if the vote for a lot was not cast at a meeting, the vote may be cast by written notice to the strata company before the voting period closes.
[Section 121 inserted: No. 30 of 2018 s. 83.]
The information published in this article is of a general nature and should not be construed as legal advice. You should not therefore act in reliance on it without first obtaining specific legal advice.
KN Strata Consultancy
E: [email protected]
P: 0401 448 308
This post appears in the July 2021 edition of The WA Strata Magazine.
Question: In a commercial strata situation, how are unit entitlements calculated? Is it a vote per unit owned or a vote per owner?
How are unit entitlements calculated? In a commercial strata situation, how many votes does each owner get? Is it a vote per unit owned or a vote per owner?
I have a property in Western Australia & in our strata there is majority ownership of units by one business entity & the two owners act as though our opinions & expectations do not matter. There are a number of owner operators but the guys who are majority owners are not operators.
Any clarity on this point you could help with would be very greatly appreciated.
Answer: Each lot proprietor has one vote when the vote is taken on a show of hands. If a poll vote is called, each lot proprietor has the same number of votes as the unit entitlements of their lot.
Please note: this response was provided prior to the proclamation of the new strata title amendments.
The Strata Titles Act 1985 (WA) (the Act) does not differentiate between commercial and residential strata schemes, both are subject to the same provisions.
The Schedule 1 by-laws deal with votes of proprietors. By-laws can, of course, be added to, amended and repealed by the strata company (as long as the changes are not inconsistent with the Act). Therefore, the first step would be to check if any by-law amendments have been registered for your strata scheme (registered amendments can be located in the Schedule of Encumbrances included in the strata plan).
However, most schemes operate in accordance with the standard Schedule 1 by-law 14 of the Act which states:
Schedule 1 by-law 14 Votes of Proprietors
- On a show of hands each proprietor has one vote.
- On a poll the proprietors have the same number of votes as the unit entitlements of their respective lots.
- On a show of hands or on a poll votes may be given either personally or by duly appointed proxy.
- An instrument appointing a proxy shall be in writing under the hand of the appointer or his attorney and may be either general or for a particular meeting.
- A proxy need not be a proprietor.
- Except in cases whereby or under the Act a unanimous resolution or a resolution without dissent is required, no proprietor is entitled to vote at any general meeting unless all contributions payable in respect of his lot have been duly paid and any other moneys recoverable under the Act by the strata company from him at the date of the notice given to proprietors of the meeting have been duly paid before the commencement of the meeting.
- Co‑proprietors may vote by proxy jointly appointed by them and in the absence of such a proxy are not entitled to vote on a show of hands, except when the unanimous resolution of proprietors is required by the Act.
- On any poll each co‑proprietor is entitled to such part of the vote applicable to a lot as is proportionate to his interest in the lot.
- The joint proxy (if any) on a poll has a vote proportionate to the interests in the lot of such of the joint proprietors as do not vote personally or by individual proxy.
It should be noted that the Act defines ‘proprietor’ as follows:
- proprietor means the person who is for the time being registered under the Transfer of Land Act 1893 as proprietor of an estate in fee simple or an estate for life in a lot;
To simplify the above by-law as it relates to unit entitlements and this query:
- Each lot proprietor has one vote when the vote is taken on a show of hands. Therefore, if you own one lot you have one vote, and if you own five lots you have five votes. This, unfortunately, does mean that if a person/s or entity owns the majority of lots in a scheme, they can have a controlling vote when an ordinary or simple majority resolution is required; and
- If a poll vote is called, each lot proprietor has the same number of votes as the unit entitlements of their lot. Therefore, if your unit entitlement is 10 and the total unit entitlement for the scheme is 100, you would have 10 of 100 votes.
Schedule 1 by-law 12 provides for any proprietor present in person or by proxy to demand a poll vote. This is typically used if an owner or a group of owners know their unit entitlement will give them greater voting power than the one vote per lot method. For example, the unit entitlements for three penthouses in a seven-lot scheme may outweigh the unit entitlements for the other four, lower value lots.
It is worthwhile familiarising yourself with this by-law.
Schedule 1 by-law 12 Proceedings at general meetings
- All business shall be deemed special that is transacted at an annual general meeting, with the exception of the consideration of accounts and election of members to the council, or at an extraordinary general meeting.
- Except as otherwise provided in these by‑laws, no business may be transacted at any general meeting unless a quorum of members is present at the time when the meeting proceeds to business.
- One‑half of the persons entitled to vote present in person or by duly appointed proxy constitutes a quorum.
- If within half an hour from the time appointed for a general meeting a quorum is not present, the meeting, if convened upon the requisition of proprietors, shall be dissolved and in any other case it shall stand adjourned to the same day in the next week at the same place and time and if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting, the persons entitled to vote and present constitute a quorum.
(4a) Sub‑bylaws (3) and (4) of this by‑law do not apply to a general meeting of a strata company referred to in section 50B.
- The chairman, may with the consent of the meeting, adjourn any general meeting from time to time and from place to place but no business may be transacted at an adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
- Except where otherwise required by or under the Act, resolutions may be passed at a general meeting by a simple majority vote.
- At any general meeting a resolution by the vote of the meeting shall be decided on a show of hands unless a poll is demanded by any proprietor present in person or by proxy.
- Unless a poll be so demanded a declaration by the chairman that a resolution has on the show of hands been carried is conclusive evidence of the fact without proof of the number or proportion of votes recorded in favour of or against such resolution.
- A demand for a poll may be withdrawn.
- A poll if demanded shall be taken in such manner as the chairman thinks fit and the result of the poll shall be deemed to be the resolution of the meeting at which such poll was demanded.
- In the case of equality in the votes whether on a show of hands or on a poll, the question is determined in the negative.
The above applies to voting at general meetings, however, it is also important to note that the council of owners is empowered to fulfil the day to day duties and obligations of the strata company subject to any restrictions imposed by the Act or by the strata company at general meetings. Schedule 1 by-law 4 dictates that a person who owns more than one lot shall be deemed to be one proprietor. Therefore, a person or entity that owns multiple lots in the same name can still only fill one position on the council.
Schedule 1 by-law 4 Constitution of the council
- In determining the number of proprietors for the purposes of this by‑law, co‑proprietors of a lot or more than one lot shall be deemed to be one proprietor and a person who owns more than one lot shall also be deemed to be one proprietor.
This may provide an avenue for you and the other owners to have some control over the day to day running of the scheme, noting that the council must act in accordance with any restrictions imposed by the Act or by the strata company at general meetings (for example, within the approved budget).
This post appears in Strata News #216.
Have a question about how unit entitlements are calculated or something to add to the article? Leave a comment below.
Disclaimer: The above information is provided solely for general information purposes and should not be taken as constituting legal advice or advice that is specific to your particular circumstances. You may consider seeking independent legal advice to see if the information provided relates to your circumstances.
Strata Community Association WA (SCA WA) is the peak industry body representing people who own and work with strata property in Western Australia by providing education and advocacy. Our members consist of strata lot owners, council of owners’ members, professional Strata Managers and associated service providers. Strata is a complex area of the property industry and it can be difficult to navigate without having access to professional assistance. To support our members, we offer a member-only Advice Line that provides general advice, information and guidance. Join SCA WA today from only $60* per annum to gain access to the Advice Line and other member benefits. Contact us to find out more!
- WA: Q&A Lot entitlements and exclusive use or special privileges bylaws
- Q&A How Does Proxy Voting Work in Western Australia?
Looking for strata information concerning your state? For state-specific strata information, try here.