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Topic
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A member of our Strata Committee’s unit is sold and he’s gone. We’re in Sydney.
There’s a Strata Committee meeting coming up this week, according to the notice board, and an agenda item says simply: No. 3. ‘Constitution of Strata Committee: departure of [John Smith], discussion regarding replacement committee member’.
First of all, seems to me this is not a properly written agenda item. They can ‘discuss’ it, but they can’t just suggest someone on the night, at the meeting, and vote him / her in, can they? There are all sorts of reasons I won’t go into why this would not be good at our block of 42 Lots.
Second, what might the correct procedure be please?
Our next AGM can’t be far away, usually May.
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Not sure about NSW but in the ACT the remaining members of an EC can appoint someone to fill a casual vacancy until the next AGM.
It might be that the committee agenda means what it says. Perhaps the committee has yet to discuss whether anyone on the committee is aware of anyone who might like to be nominated or whether the committee wants to fill the position at all. They might, after some discussion, decide that the remaining members can do all that is required till the AGM. Or perhaps someone will suggest putting out a notice to all owners asking anyone interested to put up their hand.
If the AGM is likely to be in May, then it would seem reasonable for the remaining committee to just decide to carry on till then. There would not be much time for a newbie to get up to speed and do anything useful it would seem.
Fey Knows – Sir Humphrey is correct. The Agenda is correctly worded.
At this stage no one knows who will be the replacement committee member, or if indeed there will be a replacement committee member.
To add to SH’s comments: Did the departed Committee Member hold the position of Chairperson, Secretary, or Treasurer? If so the following Sections apply.
Strata committee to appoint officers
41 Strata committee to appoint officers
(1) The members of a strata committee must, at the first meeting of the strata committee after they assume office as members, appoint a chairperson, secretary and treasurer of the strata committee in accordance with this Act.
(2) The chairperson, secretary and treasurer of the strata committee are also, respectively, the chairperson, secretary and treasurer of the owners corporation.
(3) A person may be appointed to one or more of the offices of chairperson, secretary and treasurer.
(4) Nomination for election as an officer of the owners corporation may be made before or at the meeting at which the election is held.
(5) The regulations may provide for the procedures for nomination of officers of the strata committee.
Vacation of office by officer
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.
If an ordinary committee member’s position becomes vacant the following section applies i.e.[s35]. Note the use of the word ‘may‘ in [s35(2)]. This means that it is not mandatory to fill a vacant position of an ordinary committee member. However, it is mandatory to fill an Office bearer’s position. Note the word ‘is‘ in [s45(2)].
Vacation of office of elected member of strata committee
35 Vacation of office of elected member of strata committee
(1) An elected member of a strata committee vacates office as a member:
(a) if the person was eligible to be a member at the time of election and the person ceases to be so eligible (other than because the person is an unfinancial owner), or
(b) if the person was not an owner at the time of election or was a company nominee and the individual who nominated the person for election or the corporation for which the person is a company nominee ceases to be an owner or gives written notice to the owners corporation that the person’s office is vacated, or
(c) on the receipt by the owners corporation from the person of notice in writing of the person’s resignation as a member, or
(d) at the end of the next meeting at which a new strata committee is elected by the owners corporation, or
(e) if the owners corporation, in accordance with a special resolution, determines that the person’s office as a member is vacated, or
(f) if the person dies.
(2) A strata committee may appoint a person eligible for election as a member to fill a vacancy in the office of a member of the strata committee, other than a vacancy arising under subsection (1) (d) or a vacancy in the office of an officer of the owners corporation. Any person so appointed holds office, subject to this section, for the balance of his or her predecessor’s term of office.
Note : Section 45 (2) provides for the filling of vacancies in the office of members who are officers of the owners corporation.
If you are interested in becoming a Committee member and you fulfill the requirements then you can attend the meeting and have someone nominate you to fill the vacant position.
@Fey Knows said:
An Office of Fair Trading summary of what the NSW Act says is “The position can be filled by having a member of the owners corporation fill the vacancy in an ‘acting capacity’. This is generally the easiest solution as it can be done by passing a motion by the executive committee.”This is the least acceptable way of doing this. The committee would have to agree to the acting member joining the committee at every meeting and to do that would have to achieve a quorum, based on at least half of the number of members agreed at the AGM. Only they would be trying to achieve a quorum while one member down
It’s better for the committee to canvas for new members and then elect a replacement to serve as a permanent member until the next AGM
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Fey Knows – The short answer is ‘Yes’. The SC has the authority under the Act to vote a new member on to the SC now that a position has become vacant.
Fey Knows – The Act allows for this eventuality in Sections 31, 41 and 45.
If this matter concerns you then you have every right to attend the upcoming meeting and express your interest in becoming the new replacement Committee member.
Fey Knows – We all work within the boundaries of the Legislation. Sometimes it is best to get involved in the running of the Committee if you wish to make it work better.
As for your comment about your upstairs neighbour – if you have proof (i.e. photographs, dates, times etc) that the upstairs neighbour is breaching the by-laws then you should write to the Committee and advise them of the breaches before the upcoming meeting.
In your correspondence – ask that the Committee write to the upstairs neighbour and remind them of their obligations to comply with the by-laws. Your correspondence should be tabled at the meeting. The Committee should take action as a result of your letter and/or email. Attend the meeting, if you can, to ensure that this matter is dealt with.
From the Office of Fair Trading:
“All owners and occupiers in a strata scheme, including tenants, are legally obliged to comply with the by-laws of the scheme.”
“If an owner or resident breaches a by-law, the strata committee can first contact the resident to advise of the breach, and ask that they stop the conduct that is causing the breach.
If it continues, the owners corporation can serve a ‘Notice to Comply with a By-Law’ on the person who is breaching it. This notice advises the resident of the breach and asks for the conduct to cease immediately. The notice can be a letter or email and must include the details of the by-law that has allegedly been breached. A copy of a Notice to Comply with a By-Law is available on the Fair Trading website.
The notice can’t be given without a majority vote at a meeting of the owners. However, the owners corporation can delegate their responsibility for issuing notices to comply to the strata committee or the strata managing agent. A notice must be issued before any further action can be taken to enforce the by-laws.”
My strata committee decided to stop naming candidates for vacancies after I stood in opposition to the chairman’s preferred choice – just because I wanted to force a vote.
The vote was tied and eventually the other chap gave up, I withdrew and a more acceptable candidate was elected.
The committee then proposed and passed (with proxies) a motion at the next AGM saying nominees for vacancies would not be listed “to save the embarrassment of those who failed to be elected”.
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