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  • #8837
    Paul H
    Flatchatter

      We have 10 apartments in our block and an EC of 5. I am Chairman, Treasurer and Secretary of the Committee. Until now, none of the other committee members has taken much of an interest in the workings of the EC

       

      Some time ago, one of the owners in our block replaced the carpet with a wooden floor. He did not ask EC approval before doing so. As a result, we introduced a by law which required EC permission before changing the type of flooring in any of the units

       

      One of the owners has requested permission to lay a timber floor. They claim to have a medical certificate that this will help the asthma of one of their children. They have individually approached three of the members of the EC who have approved and signed the request.

       

      The strata managers called for a postal vote but the meeting lapsed for lack of a quorum. I did not receive the notification so did not vote

       

      They have now called a meeting to be held in the garage of one of the EC members. Of the members who approved the request:

      One has said she will not attend

      One is overseas

      One is claiming that the EC has already decided

       

      That leaves two men standing and both of us oppose the request. It seems that the EC meeting will lapse again for lack of a quorum

       

      What can I do?

    Viewing 15 replies - 1 through 15 (of 27 total)
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    • #18525
      kiwipaul
      Flatchatter

        To the best of my knowledge postal voting is not accepted in NSW.

        Only Sec or SM can call official meeting and an agenda (with motions) must be supplied to everyone 3 days before the EC meeting.

        Going around collecting signature on a bit of paper is meaningless.

        Those not available to attend can return the Agenda suitably completed to record their votes at the meeting (a sort of postal vote) and increase the number considered attending (a proxy vote count as attending) for a quorum.

         

        #18529
        Jimmy-T
        Keymaster


          @kiwipaul
          said:
          To the best of my knowledge postal voting is not accepted in NSW. 

          True

          Only Sec or SM can call official meeting and an agenda (with motions) must be supplied to everyone 3 days before the EC meeting.

          Not true. This is what the Act says:

          7   Executive committee meetings may be required to be convened

          (1)  The secretary of an owners corporation or, in the secretary’s absence, any member of the executive committee must convene a meeting of the executive committee if requested to do so by not less than one-third of the members of the executive committee, within the period of time, if any, specified in the request.

          (2)  If a member of the executive committee other than the secretary is requested to convene a meeting of the executive committee under this clause, the member may give, on behalf of the executive committee, the notice required to be given under clause 6.

          Going around collecting signature on a bit of paper is meaningless.

          True in terms of the EC having given approval – that can only be given by a properly convened and minuted meeting that other owners are allowed to attend.  However, collecting signatures is how you request and convene a meeting as described above 

          Those not available to attend can return the Agenda suitably completed to record their votes at the meeting (a sort of postal vote) and increase the number considered attending (a proxy vote count as attending) for a quorum.

          Never heard of returning a “marked-up” agenda as a form of voting.  You could give that to your proxy at an EC meeting as a guide but it has no legal status.  By the way, EC proxies are in person – assuming you are an EC member yourself, you have to nominate someone in your place or an EC member who will vote on your behalf. And before their proxy status is valid, they have to be accepted by a majority of the other EC members.

          “Postal votes” are invalid and even nominations of proxies don’t count towards the quorum of an EC meeting – the meeting has to be quorate before proxies can be accepted.

          That’s why Paul H is in this bind with non-attendees running the agenda.

          The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
          #18530
          Jimmy-T
          Keymaster

            @Paul H said:
            Of the members who approved the request: One has said she will not attend, one is overseas, one is claiming that the EC has already decided

            That leaves two men standing and both of us oppose the request. It seems that the EC meeting will lapse again for lack of a quorum. What can I do?

            Firstly, tell the strata manager to write to the floor applicant IMMEDIATELY telling them that they definitely do not have approval for the floor as a properly convened meeting of the EC has not been held.  There should also be a polite warning not to proceed with the flooring as they may be required to replace it should approval not be forthcoming.

            The letter should explain that the meeting has to have a quorum of owners and it must also allow non-EC members to attend so they can hear what is being discussed.  This letter must be sent out as a matter of urgency and copied to all EC members.

            You could also write to the owner concerned and urge them to ask their supporters to attend the meeting, so at least a proper decision can be taken.

            If the other EC members refuse, you could call a general meeting and sack the wilfully non-attending EC members (you will need 75 percent of owners to support you but proxies will count towards your quorum so get harvesting).  The argument I would use is that these three EC members have put the Owners Corp in a position that could be very costly in legal and other fees by going “off the reservation” and giving approval they weren’t entitled to give.  Even worse, two of them are refusing to make things right by attending a meeting.

            You don’t need to fill the vacancies immediately – you can do that as and when people put themselves up for election – and at the next AGM reduce the size of the EC to three (which is adequate for a building like yours)

            The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
            #18531
            kiwipaul
            Flatchatter

              I’m staggered that voting by post is not allowed in NSW because we can vote at GM in QLD just by completing the agenda, (or voting paper if different)  signing it and sending it to SM (Sec).

              Voting by casting a written vote
              A voter may submit a written vote by completing the voting papers and giving them to the secretary before the start of the general meeting. A written vote:

              •  can be given by hand, by post or by facsimile

              •  may be withdrawn by the voter at any time before the result of the motion is declared

              •  cannot be withdrawn by a proxy.

              This is such a universal thing I assumed it would apply throughout Oz.

              In fact if we don’t have a quorum at a QLD AGM,(or GM) I was told we would continue the meeting as though a quorum was their, the SM would record all the votes and schedule a new meeting for 7 days time when any owner present at the first meeting would not be required as the SM had a valid record of their voting intentions.

              You cannot do this in NSW, so you have to reschedule the meeting and however many present at the second meeting they are considered a quorum. This seems a very risky method to me and wide open to abuse.

              #14751
              Jimmy-T
              Keymaster

                Everywhere has their own quirky differences.  In NSW, we do have the ability to specify on official proxy forms how proxy holders should vote at general meetings but that’s the exception, rather than the rule.

                There is away that the NSW applicant could have won approval without a physical meeting having taken place and that’s if the executive committee had decided to vote in writing.   But there would still have to have been an agenda sent out to owners or posted on the noticeboard 72 hours before the proposed meeting.

                “Where a meeting is to be done in writing a notice and agenda must also be given to each executive committee member,” according to Fair Trading’s Strata Living booklet.

                The committee can also vote on issues without formally holding a meeting in Queensland where a ‘flying minute’ is used, for instance, when urgent work needs to be approved in a hurry within the scheme.

                According to THIS document, “decisions may be made in this manner if all committee members are given written notice of the motion and a majority of the voting members of the committee gives written agreement to the motion.

                “The notice (or the ensuing committee member’s agreement) does not need to be in writing and can be given orally or by some other form of communication. Any motion voted on under these provisions must be confirmed at the next committee meeting.”

                In Victoria, the committee can still hold a meeting if there is not quorum but any decisions made don’t take effect until they are confirmed at a subsequent meeting or by a ballot of Executive Committee members.  

                The Victorian Owners Corporation Act says a ballot can be conducted by “post or by telephone, facsimile, the Internet or other electronic communication.” There’s more information about committees in Victoria in THIS factsheet.

                South Australian strata works under a whole different set of rules again, including that all committee members must be unit owners and that special resolutions at general meetings must be approved by two-thirds of all owners (rather than 75 percent of votes at the meeting, as in NSW).  You’ll find out more about strata in South Australia HERE.

                 

                The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
                #18190
                kiwipaul
                Flatchatter

                  @JimmyT said:

                  “Where a meeting is to be done in writing a notice and agenda must also be given to each executive committee member,” according to Fair Trading’s Strata Living booklet.

                  Paul H this seems to be your solution, if members cannot make a meeting get them to vote by returning a voting slip.

                  Thing to bear in mind is that the result is only passed if a majority of those eligible to vote, vote in favor (as a no response is taken as a vote against the motion). A returned vote of ABSTAIN would reduce the total eligible vote by 1 as an abstain is neither for or against.

                  We do this all the time in our Strata in QLD as trying to organize a EC meeting is just about hopeless.

                  #18191
                  Jimmy-T
                  Keymaster

                    @kiwipaul said:
                    Paul H this seems to be your solution, if members cannot make a meeting get them to vote by returning a voting slip.

                    This makes sense, KP, except I suspect Paul H wants the others to come along and justify why they agreed to the timber flooring – and possibly be persuaded to change their minds.

                    I found a stray piece of information on the internet that says some strata laws somewhere have a rule that if an EC member misses two meetings in a row without giving prior warning to the EC, then they forfeit their seat.

                    Have been unable to discover where this is – sounds like a good rule to me:  Step up or step away. 

                    The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
                    #18195
                    Paul H
                    Flatchatter
                    Chat-starter

                      It is not that I want them to justify why they changed their minds but to justify why they are on the committee at all when they do absolutely nothing

                       

                      Our Strata Manager says that it is not correct that no vote means a vote against the motion. What is the basis for that claim?

                      #18214
                      Jimmy-T
                      Keymaster

                        KiwiPaul said

                        Thing to bear in mind is that the result is only passed if a majority of those eligible to vote, vote in favor (as a no response is taken as a vote against the motion).


                        @Paul
                        H said:
                        Our Strata Manager says that it is not correct that no vote means a vote against the motion. What is the basis for that claim?

                        That one had me scratching my head too.

                        EC votes are decided on a simple majority.  Abstentions don’t count (which is pretty much the definition of an abstention).

                        Special resolutions at General Meetings (in NSW) require that no more than 25 percent of those voting are not against the motion.  Again, and more critically, abstentions don’t count.

                        So, theoretically, you might have 60 owners in a block of 100 turn up for the AGM, 20 abstain from a vote on a special resolution and 11 of the remaining 40 vote against while the other 29 say “Aye”.   The motion is defeated because more than 25 percent of the actual vote was against it, even though only 11 percent of the owners actively rejected the motion.

                        Just as an aside, this is a good indication of the ‘Ratchetting” effect of special resolution and by-law votes.

                        By the time owners realise they might have made a mistake in approving a by-law, it takes an awful lot of politicking to get the 75 percent vote needed to reverse the decision.  The reality of strata life and the level of indifference is such that a highly motivated but tiny minority can have a huge bearing on how the building is run.

                         

                        The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
                        #18217
                        scotlandx
                        Strataguru

                          I know your question is about the issue in getting a quorum for the EC, but to me there are two things.

                           

                          1. the owner wanting to put in a timber floor – it is irrelevant whether he has a doctor’s certificate.  What you need if you are to properly consider his request is full details of the floor he will be laying, the rooms in which he proposes to lay it, and how the floor will provide adequate sound insulation.  This would include detailed specifications of the underlay.  You would expect all that information to be included in the agenda for any EC meeting, together with the proposed resolution.

                          You may also want to consider a special by-law to make it clear that he is responsible for the floor going forward.  That would require approval at a general meeting.  At the same time you might want to consider dealing with the other owner who didn’t get approval.

                          2. EC approval of the request – we have an owner who has a habit of talking to various EC members separately, and then going to the strata manager and saying that the EC has said “it is ok”.  Setting aside that none of the EC members have said “that is ok”, that is not how an EC makes decisions.  In the end we had to write him a letter telling him that.  Of course he still does it but at least we have it on record.

                          So the owner approaching individual EC members and getting signed approvals doesn’t meet the requirements of the Act.

                          You need a properly convened meeting, with notice given as required under the Act (72 hours, agenda with proposed resolution).  You then need a quorum at the actual meeting, and then you need a majority vote.

                          A no vote does mean a vote against the motion, what else would it be?  A no vote means – I do not approve the motion.  You can have three types of “action” – a vote for, a vote against, or an abstention.  An abstention doesn’t count towards the vote, as Jimmy has said, it signals that you don’t want to vote on the motion.

                          From what you have said, it doesn’t sound like there has been a properly convened meeting anyway (I could be wrong), and there has been no decision.  

                          You have said you are the Chair, Secretary and Treasurer.  Perhaps you need to exercise a bit more control – it is hard, but it is better than your current situation.  Tell the other EC members that no decision has been made, that a proper resolution with full details of the request needs to be put up by the owner, to be considered at a proper meeting.  If the EC members don’t turn up then too bad, the owner will just have to wait.

                           

                          You can have a decision made by written resolution under Schedule 3, clause 10.

                          10 Voting in writing by members of executive committee

                           

                          (1) A resolution is taken to have been validly passed even though the meeting at which the motion for the resolution was proposed to be submitted was not held if:

                          (a) notice was given in accordance with clause 6 of the intended meeting, and

                          (b) a copy of the motion for the resolution was served on each member of the executive committee, and

                          (c) the resolution was approved in writing by a majority of members of the executive committee.

                          (2) This clause is subject to clause 11 (2).

                           

                           

                           

                           

                           

                           

                          #18218
                          kiwipaul
                          Flatchatter

                            @Paul H said:

                              Our Strata Manager says that it is not correct that no vote means a vote against the motion. What is the basis for that claim?

                            See 10 (c) of Scotlandx reply which I assume is from the act itself. It doesn’t say a majority of the returned vote BUT the majority of the EC.

                            The reason you need a majority of the total EC is so that if only 1 or 2 reply in the affirmative (out of 9 say) it stops unreasonable decisions by an active few that can affect all. Also the Sec might not send to all EC members if they want to influence the result or loose votes against. It keeps the EC honest.

                            So in my example (9 EC) you meed 5 to vote in favor to pass (or 4 if you get 2 returns that abstain).

                            Same rule applies in QLD.

                            #12382
                            Paul H
                            Flatchatter
                            Chat-starter

                              Thanks for your comments and advice

                               

                              The owner requesting the timber floor has been told that he will have to wait for a decision

                              The other owner who put down the timber floor without permission sold up soon after

                              So, we introduced (with the agreement of the required 75% of owners) the new by law with the express purpose of stopping any further timber floors. Those same owners that agreed to that by law now seem to have changed their minds – perhaps because they will not be affected by the extra noise in this case. I certainly do not regret that the by law was introduced

                              I realise that getting signatures on a letter to the SM and producing a doctor’s certificate are irrelevant but there are some bleeding hearts on our committee

                              We have been given no details about insulation for the proposed timber floor

                               

                              I have been trying to control the situation – by pointing out to the EC members that a meeting must be held. and by scheduling a physical meeting that lapsed. I have asked the SM to carry out another postal vote

                               

                              I have a question though. At the last postal vote, the EC members that did vote gave their proxies to the meeting chairman who was our SM. How do I make sure that I am the chairman for the next postal vote? Is it as simple as just telling the SM?

                               

                              Thanks again

                               

                              #18544
                              kiwipaul
                              Flatchatter

                                @Paul H said:

                                I have a question though. At the last postal vote, the EC members that did vote gave their proxies to the meeting chairman who was our SM. How do I make sure that I am the chairman for the next postal vote? Is it as simple as just telling the SM?

                                 

                                NO the SM is NOT the chairman. You said in your first post that you were the Chairman, Treasurer and Sec so you chair the meeting.

                                The SM can stand in for any of these positions if the meeting votes for him to do so, but any decisions he takes must be acceptable to the real chairman (YOU).

                                #18543
                                Jimmy-T
                                Keymaster

                                  @kiwipaul said:

                                  NO the SM is NOT the chairman. You said in your first post that you were the Chairman, Treasurer and Sec so you chair the meeting.

                                   

                                  In NSW most strata managers can chair the meeting in the absence of the usual chairman or chairwoman.

                                  Paul H was absent from the meeting but when he is back at the next one, as the Strata Act says, the the chairman must chair the meeting.

                                   

                                  The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
                                  #18546
                                  scotlandx
                                  Strataguru

                                    If it is a meeting in writing, then effectively there is no Chair, because there is no meeting in the proper sense of the word.  It is pretty pointless being Chair of a meeting when it is being done by written resolution.  I am not sure what having the votes returned to you would achieve, you could insist if you want to.

                                    I suggest you have a “real” meeting and make sure you are the Chair, and also set the agenda.

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