Remove a Strata Committee office bearer from their position | Strata Committees | Flat Chat Forum: Your Questions Answered




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Remove a Strata Committee office bearer from their position
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Waratah
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12/11/2017 - 11:45 am
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A number of Strata Committee members are concerned about the behaviour of an office bearer and want to remove that person from the position.

Part 3 Division 4 Section 45 of the Strata Schemes Management Act 2016 sets out the circumstances under which an office is vacated:

Part 3 Division 4 Section 45

45 Vacation of office by officer

(1)  An officer of an owners corporation vacates office as an officer:

(a) if the person ceases to be a member of the strata committee, or

(b) on the receipt by the owners corporation from the person of written notice of the person’s resignation as an officer, or

(c) if another person is appointed by the strata committee to hold that office, or

(d) if the owners corporation, by special resolution, declares that the person’s office is vacated, or

(e) if the person dies.

(2)  A strata committee is to appoint a person who is a member of the strata committee, or who is eligible to be a member of the strata committee, to fill a vacancy in the office of an officer of an owners corporation, other than a vacancy referred to in section 35 (1) (d). Any person so appointed holds office, subject to this section, for the balance of his or her predecessor’s term of office.

Looking at this, it seems like the Committee could simply vote to have another member be appointed to the office position?

Might a motion on the agenda circulated to all owners 3 days prior to the committee need to look something like this - "Move that Josie Bloggs be nominated as Secretary" (rather than, say Agenda Item 2. Election of office bearer)?

Schedule 2 of the Act seems to suggest that owners who are not on the Committee do not need to be made aware of motions?

(2) Voting in writing

A motion proposed to be put to a meeting is taken to have been validly passed even if the meeting was not held if:

(a) notice was given of the meeting in accordance with this Schedule, and

(b) a copy of the motion was given to each member of the strata committee, and

(c) the motion was approved in writing by a majority of the members of the committee (other than the tenant member).

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Lady Penelope
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12/11/2017 - 12:27 pm
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Owners who are not on the Committee must definitely be notified of any Motions that are being voted on by the Committee. Your extract from Schedule 2 does not reflect all of the requirements.

Agendas of Committee meetings must be circulated to all owners prior to the Committee Meeting.

Even if no official meeting is called and the Committee decides to conduct all of its decision making outside of a Committee Meeting then the Owners still need to be notified by Notice at least 3 days in advance of an impending Committee vote. The Notice should include the proposed Motion(s).

Voting outside of a Committee Meeting must be in writing and not by phone.

Then, within 7 days after the passing of a resolution by the strata committee outside of the formal Committee Meeting, copies of the minutes must be given to each member of the committee and each of the Owners.

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Lady Penelope
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12/11/2017 - 5:09 pm
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Re the removal of a Committee member from their position as an office bearer to a position as an ordinary member.

Your assessment is correct.

A resolution can be revoked in the same manner in which it was passed. This means a committee can change their mind at committee meetings or by a vote outside committee. 

If the Committee voted a person into an Executive position then the Committee can vote to remove them and install another person in that role.  See Section 45(1)(c) from your extract from SSMA 2015 above.

As you are probably aware, a Committee cannot vote to remove a member from the Committee all together though. Only the OC can do that. A general meeting resolution can only be revoked at a general meeting by the same type of resolution. 

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pielover
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13/11/2017 - 12:16 am
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Penelope,

Are you saying that ANY/ALL motions & resolutions made by the Strata Committee in their meetings are to be distributed to all the owners ?

I couldn't find this described in SSMA 2015. Please confirm...

thanks

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Lady Penelope
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13/11/2017 - 10:47 am
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Yes, that is exactly what I am saying.

The reason for making the Lot Owners aware of both the proposed Motions and the Resolved Motions made by the Committee is to allow the Lot Owners to exercise their right to object to these Motions.

If enough Lot Owners object to the proposed Motions of a Committee Meeting, whether this is to be a formal Committee Meeting or a vote outside of a Committee Meeting then the Motion will have no effect. To put the brakes on a proposed Committee decision 1/3 of the total numbers of Lot Owners can object by way of writing to the Secretary prior to the Motion being Resolved.

Similarly, Lot Owners can exercise their right to put the brakes on Committee decisions after the Committee have Resolved the Motion.

That is why it is very important that a copy of the Minutes, including all of the Resolved Motions, must be provided to all Lot Owners within 7 days. NB: For this reason it is wise for a Committee not to take action on any Resolved Motion within that 7 day time period.

This process allows Lot Owners to exercise their right to object to the Committee Motion(s) by calling a General Meeting to overturn it. A lot owner, or owners, who hold jointly at least 1/4 of the unit entitlements, may request a meeting to be held at any time. 

The Committee is elected to represent the Owners Corporation. If the Committee make decisions which do not reflect the wishes of the Owners Corporation then there are mechanisms within the Act for the Owners Corporation to overturn the Committee's decisions.

The reference from the Office of Fair Trading is below. For a fuller understanding of the issue it is best to read the information in total rather than only reading the isolated headings.

NB: The giving of Notice and the giving of Minutes varies slightly with large schemes i.e. those containing over 100 Lots.

http://www.fairtrading.nsw.gov.....ittee.page

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pielover
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13/11/2017 - 7:25 pm
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Penelope,

Very interesting, but I have never seen any SC decisions documented as motions or resolutions, but numerous decisions are made. This may be intentional , perhaps, to avoid the need to provide such documentation to the owners....

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Lady Penelope
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13/11/2017 - 8:48 pm
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It is common in Qld, where I live, to have Motions within Minutes.

Well conducted Committee Meetings, and well recorded Minutes, should be mainly comprised of discussions (which are briefly summarized in the Minutes) and resolutions (which are decisions that have been made as a result of these discussions).

What the Committee discusses, and decides, should be a matter of community record – even if the subject is controversial. This is known as the 'deliberative process' i.e. how decisions were arrived at.

For clarity the resolutions of the discussions should be in the form of Motions which are then voted on by Committee members. Numbers For and Against should be recorded and Minuted as being Resolved Or Carried if the majority is For the Motion.

If an issue cannot be resolved it should be Minuted that it is to be held over until the next Meeting.

However, regardless of the form that the Committee Minutes are in if a decision has been made by the Committee then it is a Resolution because it is a decision that has been resolved. 

The Lot Owners have a legal right under the Act to know what these Resolutions are.

If your Committee is not providing your Lot Owners with an Agenda and the proper Notice of the Meetings, and are not providing the proper Minutes of the Meeting within 7 days after the Meeting then they are in breach of the Act.

See below for an article on how Strata Managers record the Minutes:

https://www.lookupstrata.com.au/body-corporate-meeting-minutes/

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Fleabits
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17/11/2017 - 9:24 am
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Lady Penelope, I am aware that here in NSW, meetings and resolutions of the Committee are meant to be minuted.  I wasn't aware that each Lot owner was entitled to be made aware of proposed and decided resolutions or that lots owners had the right to object.  My OC does not hold any General meetings and imposes a fee of .."$190 approx" if the Committee is required to decide any matter which requires a 75% affirmative vote of the OC. I have never heard of this before and can only think that it was proposed by the Committee in order to dissuade owners from making such requests.

I'm wondering whether anyone else is in a Scheme which imposes a fee for a General Meeting.

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scotlandx
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18/11/2017 - 6:40 pm
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Fleabits - of course all owners have to be made aware of proposed resolutions and resolutions that have been made, they are the owners - they have a right to be given notice of essential matters concerning their property.  Schedules 1 and 2 of the Act sets out detailed requirements in relation to meetings of the OC and Strata Committee respectively, which includes giving notice to the owners.

Your statement that the OC doesn't hold any general meetings is alarming.  The Act requires:

- an annual general meeting must be held every financial year - section 18

- the agenda for an annual general meeting must include certain matters including adoption of the financials and election of the strata committee - Schedule 1, para 9

- other general meetings can be held to deal with specific matters requiring a resolution of the owners

- certain matters can only be approved by a general meeting of owners - e.g. legal services (section 103), works affecting common property (section 111), changes to by-laws (section 141), appointment of a strata manager.

If what you are saying is correct your scheme is in breach of the law in a number of respects. The Committee does not have a right to impose what is essentially a fine for holding a meeting which is required by the law (setting aside that the OC may ask an owner to pay costs of holding a meeting to deal with a matter specific to that owner).

You should be asking the Committee why they are not holding general meetings as required by the law, and why they believe that they can make decisions that are outside their powers.  If that is what they are doing I suggest you have grounds for seeking removal of the Committee.  Do you have a strata manager?

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