Last week I was asked for a source of the Queensland legislation that says 100% of owners need to give permission before a scheme can be terminated.
I don’t actually like the “show me the legislation” question, but in this case it’s contained within the BCCM Act itself (from section 77 if you’re interested) and was easy to do.
If you do read it though you’ll note that it doesn’t actually say 100% of owners need to agree for the sale to proceed.
It says the body corporate must pass a resolution without dissent.
Now you may be thinking, duh, same thing, but you’d be wrong. Yes everyone who votes must vote yes, but there isn’t any requirement for everyone to vote.
In fact I did a search there other day where a building with 140 lots passed a resolution without dissent with only 15 affirmative votes.
15 out of 140 potential votes! That’s not even enough for a quorum.
Some of you might be scratching your head wondering how a vote could pass when the meeting doesn’t even have a quorum, and still others might be thinking “what’s a quorum”?
Which all leads me to believe there might be a bit of confusion about how motions are passed within body corporates. Let’s if I can shed some light.
Body Corporate Voting Rights
One lot equals one vote.
It doesn’t matter how many owners there are for a lot, that lot still only has one vote. If two votes for one lot are received they will both be invalidated. That may sound unfair but how do you decide which is valid? You can’t, so they both go.
Those are your body corporate voting rights.
However, it’s unfair for any one owner not to pay their way, so if you have overdue levies you will be stripped of all your voting rights except for resolutions without dissent.
At least once every year lot owners are called to vote on certain matters. Annual General Meetings include statutory motions that every scheme must consider plus anything else that any of the owners, or the Committee, feel might be worth considering.
You also elect the Committee.
Occasionally urgent matters crop up and and an EGM might be held to get lot owner approval.
Those are your voting rights. It’s seems simple.
Yeah, not so much. There’s so many other factors to consider.
Getting the Preliminaries Right
General meetings have whole rituals that must be completed before they even get to the meeting. I’ve written more about them here.
It’s important to note that if the preliminaries are not followed correctly then the entire meeting and any motions passed within can be invalidated.
Meeting Quorums
Apart from notice the other requirement for a general (and Committee) meetings to proceed is a quorum, or minimum number of voters present.
A quorum for a meeting is 25% of voters.
If you’ve submitted a voting paper you’re considered “present”, however, at least two voters actually physically need to show up for the meeting to be able to go ahead.
If there isn’t a quorum within 30 minutes of opening the meeting then the meeting is adjourned, which simply means called off.
It will be reconvened exactly seven days later.
So if the meeting was on Monday at 9.00am and was adjourned, then it is reconvened the following Monday at 9.00am.
The key point here is reconvened general meetings don’t require a quorum. No one can show up for the reconvened meeting, no further votes need be received, and the meeting will still proceed.
This is a very important point, which I’ll discuss in more detail below.
For the purposes of this discussion I’ll assume that proper notice is given and the motions themselves comply with legislation and won’t be ruled out of order.
How a Motion Passes Will Depend on The Type of Resolution
OK, so we’re all good, we’ve had our notice, got a quorum and we’re ready to count these votes.
How you count them will depend on what sort of motion they are. There are three main types of resolution;
- Ordinary resolution
- Special resolution
- Resolution without dissent
Ordinary Resolution
When counting votes for an ordinary resolution then it’s one vote per lot and a simple majority passes the motion.
For instance, seven votes are cast, four are yes, three are no, that motion is passed.
If the votes are tied the motion failed.
But wait, there’s more, a lot owner can ask for a poll vote to be taken for an ordinary resolution. That means the total contribution lot entitlements of those voting yes and those voting no are compared. A simple majority passes.
What that means is if my contribution lot entitlement is 1 and yours is 2, your vote is twice as valuable as mine.
Types of motions passed by ordinary resolution
Ordinary resolutions are your bread and butter of body corporate decisions. Things like issuing the yearly levies, obtaining reports, appointing body corporate managers or auditors and even spending substantial amounts of money can be decided by ordinary resolution.
Special Resolutions
The next level up from ordinary resolutions is a special resolution.
A special resolution is passed if:
- Yes votes account for 2/3rds of those votes cast (excluding abstains)
- Those who voted no weren’t more than 25% of lots
- Those who voted no weren’t more than 25% of the contribution lot entitlements
Each test must be answered yes for the vote to pass.
So for instance…if 100 votes are cast out of 150 lots with a total contribution entitlement aggregate of 300 (2 per lot) and 60 voted yes, 30 voted no with 10 abstaining, then:
- 2/3rds of the votes cast is 60 ((60+30) x 2 ÷ 3=60) (ignore those who abstained)); that’s a pass
- 25% of lots is 37.5 with only 30 voting no; that’s also a pass
- The total contribution lot entitlement of those who voted no is 60, less than 75 which is 25% of the 300 aggregate; again this is a pass
In reality of course these votes are much more complex since contribution lot entitlements can be very unequal.
Types of motions passed by special resolution
More important issues are decided by special resolution including changes to by-laws, expenditure over $2,000 per lot or a motion to appoint a body corporate manager to act as the Committee.
Resolution without Dissent
A resolution without dissent is a motion where all the votes must be yes. If anyone votes no the motion is lost.
If you have overdue levies you can still vote on a resolution without dissent, which is a clear indicator of how important these motions are.
These are motions that are going to impact on the holdings of the joint lot owners, consequently every lot owner must be given an opportunity to have their say.
Types of motions passed by resolution without dissent
A resolution without dissent is required to do anything with the common property. Examples are granting an area as exclusive use, selling a portion of the common property or dissolving the body corporate altogether.
But … The Courts may overturn dissent
Simply voting no to a resolution without dissent is not always the end of the matter.
If you are the only one who objects, and your neighbours believe you’re only did that to upset them, then they can apply to the court to have your vote disregarded.
In Boulevard North [2009] QBCCMCmr 21 (27 January 2009) it was noted
If satisfied a motion requiring a resolution without dissent was not passed because of opposition that in the circumstances is unreasonable, an adjudicator may make an order giving effect to the motion as proposed or a variation of the motion as proposed (schedule 5(10),Act).
And indeed the ability for the court to disregard an objector applies even to the decisions about termination of the scheme.
The problem with voting at general meeting
Remember we talked about quorums above?
That’s the key problem with voting at general meetings. It is very common for body corporates not to achieve a quorum.
And, if a meeting is adjourned, when it’s reconvened the requirement for a quorum is waived.
Referring to my example above, a building with 140 voters, has a quorum of 35, yet 15 votes are received. The meeting is adjourned and reconvened a week later and quorum requirements are waived. Those 15 votes are sufficient to carry a motion which is so important to the scheme, a resolution without dissent, that even the black sheep are entitled to vote.
It’s crazy. A motion was passed that effectively sliced off a portion of the common property and allocated it to someone and the vast majority of owners just didn’t care, or more likely didn’t realise.
This is how small groups end up controlling body corporates.
If no one else can be bothered to vote those that do vote control what the body corporate does. And in most cases they’re also the ones writing and submitting the resolutions that nobody then bothers to vote on, meaning they are literally writing the direction of the body corporate.
That’s how you end up with sudden hikes in levies or even massive special levies; it wasn’t out of the blue, you just weren’t paying attention!
It is true that the legislation has clear boundaries on what body corporates can do but that assumes that the scheme is acting within those boundaries, which is not always the case.
There is no one watching, no policing. You’re on your own here guys.
So pay attention. And then vote!
Unless stated otherwise all the information on this website relates to Queensland legislation.
Our building has 73 owner occupied and 24 in the letting pool.
The committee is of the view we the residents would benefit from changing from an Accommodation module to a Standard module.
What is your opinion and if it is yes change how do we go about it?
Thanks
Regards Jan
Hi Jan
Thanks for your comment. Yes if most of you are owner occupiers then you likely could benefit from a change to Standard module.
To change your regulation module the body corporate must pass a special resolution at general meeting. You’ll have an issue with the Caretaking and Letting Agreements for your building because they will be for 25 years or part thereof, whilst for a Standard module they may only be for a maximum of 10 years. I’m afraid I don’t know how you go about changing them. It’s probably best to discuss with a solicitor who deals in Management Rights.
Hi Lisa,
We recently purchased Management Rights on the border of NSW. The couple whom we purchased the business off were also running the Body Corporate as Chairman, Treasurer & one lot owner as Secretary, there is no one else on the Body Corporate. It was noted that the Chairman & Treasurer were to stand down from the Body Corporate 3 months after we purchased. They overturned that decision & are still running it, because they have large blocks of land which they have now attached to the property so as they can save money on providing services to there future development.
We have just tried to have a AGM were the 3 Committee members would not accept any Nominations calling for Committee positions. They overruled them by using there 350 votes that they had from there attachment properties. Any other matter that was tried to put forward was dealt in the same way, overruled even to the request of having an audit. As a result most of the lot owners walked out of the meeting in protest, as it has come to a head that the Body Corporate is not only become a dictatorship, it is corrupt on every level & totally dysfunctional. Our motivation now is to get a Professional Body Corporate to take over. The Chairman & Treasurer of the Body Corporate is now on the property on a daily basis to not only try & intimidate us but to try & find any little thing to use against us, as well as slandering our reputation to various Lot owners. His motivation now is to drive us out. I would like to know if you have any words of advise on the best way to handle this situation? One thing we have learnt is to never buy a property who don’t have a professional Body Corporate!
Hi Michele, I’ve sent you an email.
Hi Lisa
I am an owner in a three townhouse complex. I have a situation where the treasurer who is not an owner, nor related to an owner, is being paid $600 per year for the role of treasurer.
I have never had a nomination paper from either the “treasurer” nor the secretary.
I feel that this “treasurer” and the BC secretary (an owner) are spending BC funds to the benefit of one owner being the BC secretary. Can a non-owner actually be the treasurer? And how can I get on the committee? The Chairperson is the owner of the other townhouse. Many thanks for any help you can give me this is my first experience with a BC and I am totally bewildered as to how this “treasurer” and the secretary are able to spend the money. Cheers.
Hi Lesley
I’m as confused by this situation as you seem to be. To appoint an Office Bearer you would need to vote at the AGM. The same for the payment. You would have the opportunity to vote on the issue a the AGM. The body corporate cannot just decide to pay someone without giving all owners the right to vote.
The only people who are eligible to be on the committee are lot owners, those appointed to act for lot owners or family members of lot owners. If the Treasurer is none of these people then they’re not eligible to be on the committee let alone receive payment for it.
To object you would need to lodge an application for Adjudication with the Office Commissioner Body Corporate.
Every year, prior to the end of financial year, the Secretary is must send a letter to all lot owners asking for nominations for Committee. All you need do is send back the nomination form, or letter if there is no form, nominating yourself. With three lots you will automatically be included on the committee without the need for a vote.
Thank you Lisa. There are so many other breaches of the BCCM as well.
I note that before proceeding to adjudication one needs to attempt self resolution. Should I write a letter to the non owner treasurer and demand that she hands over the records to me? I have already emailed her to let her know that she simply cannot be on the committee let alone be treasurer and have had absolutely no response. I am not sure of the wording of what order I would be seeking from Adjudicator???
Cheers.
Hi Lesley
I would write to the committee and make it clear that you do not believe the person who is the Treasurer is eligible to be on the committee.
Wait for their reply, if any.
When you make an application to the Commissioner consider what outcome you would like. Obviously that person no longer as Treasurer. You yourself appointed as Treasurer instead? Repayment of the monies paid?
You may ask for whatever you would like. The Adjudicator will interpret the law and decide if what you’re seeking is possible. It is a good idea to keep things simple and clear.
You also need to find out what regulation module your scheme is registered under.
Hi Lisa
It is the standard module. I did write to both the non-owner “Treasurer” and the BC secretary to let them know that the non lot owner cannot be on the committee and of course did not receive a reply. I am trying to complete the Form 22 Conciliation.
Who is the respondent? It says I cannot lodge against BC committee nor the BC manager.
Do I use the name of the non-owner “Treasurer” and tick the body corporate box?
This is so confusing. I have spoken to so many people and they have never heard of a person who does not own a lot being on a BC committee. Any advice is greatly appreciated…
Hi Lesley
The respondent would be the Body Corporate. I would put an “outcome sought” as remove the non-owner as Treasurer and appoint someone else, possibly you (or of course anything else you think fit).
Lot owners do all sorts of things with their body corporates, some of it lawful and some not. The key point is unless a lot owner like yourself raises an objection they get away with it.
HI
We have 5 units and we are voting to decide if we engage a strata manager. We have voted and 3 say yes and 2 say no. The 2 that say no make up 50% of the unit entitlements and the 3 that say yes make up the other 50%. How do we decide who wins the vote?
Hi Fiona
A majority has not been reached, the motion has failed.
If it was a motion with alternatives and the motion passed but a choice between the two alternatives was needed a flip of a coin is allowable. But the motion must clearly be the will of the majority.
The motion will need to be put forward again at the next general meeting.
If an owner has a pecuniary interest in a vote at an AGM, are they required to declare it? and abstain from voting?
I am referring to a benefit that no other owner would get.
e.g. all owners have unrestricted access to a swimming pool. One owner(a hotel operator with several units) charges his guests to use the pool.
If the AGM voted on rules governing the use of the pool and charges for use, would the hotel operator be required to declare and abstain?
Hi David
Good question! I’m not aware of any requirement to disclose and abstain from voting relating to general meetings. In fact there would be several instances where matters would have a financial benefit for owners and they can still vote. Off the top of my head entry into Caretaking and Letting Agreements where the Caretaker may vote if they are a lot owner.
Certainly committee members are required to disclosure and abstain on voting in those circumstances in committee meetings. The need applies when a conflict of interest would arise.
From what you’ve outlined here I’m not sure there’s a conflict of interest.
Also, the body corporate cannot restrict use of the common property for any reason. They’re allowed to set rules for use, including time frames, but that restriction relates to other by-laws such as quiet enjoyment of the property. The idea that they might charge to use the pool is spurious. Body corporates are expressly forbidden from making an income and certainly not from charging owners for use of their own property!
The legality of a third party doing it is arguable as well. If they hire the lot are they not taking on the rights of the lot owner? For however long? It is not allowable to create two ‘classes’ of residents – those who own and those who let.
That’s my understanding David, and please do take it with a grain of salt. I am not a legal professional and have only brief outline of the situation.
Hi All,
Thanks for this great article and information, Lisa!
We are an owners lot of only 6 in inner suburbs of VIC. The group decided to take action on one owner who didn’t pay his OC fees and what followed was 9 years of litigation against this owner and subsequent bankruptcy where he was required to sell his apartment to pay for his fees and lawyer fees. I feel that this whole process has been poorly handled by the OC Managers and the Company we engage. Firstly, to allow the owner to get so far down the line and not paying the fees and then to date, where I feel we’ve been held to ramson by this company. They were the first to take the 11k for their so called services in helping us to get to this resolution ( sending a few emails etc ), and now, we are still after over 18 since the monies have been with the Bankruptcy business and yet to see it. Our Owner Corporate Manager has engage a Lawyer, who then, in turn, engages with the Solvency Lawyers. Each of these org’s is making 450 per hr out of our money which is over 30k which is owed to us.
I question the integrity and believe they are very deceitful in their dealings with us. We want to remove them but we need the money back first. I want to lodge something against this company too for very poor service etc.
Is VCAT the way to go? I will try moving to OUR BODY CORP the online platform as the amount of money we are continuing to pay this company is absurd. It’s funny, as we pay them for their services but feels like we are being held to ransom while they continue to bleed us dry. I feel that are the lowest form people – bottom feeders using the weak systems to exploit people and make money in a very fraudulent manner….
Any support or direction would be appreciated… I understand QLD and VIC may have different rulings.
Hi Cameron
That sounds incredibly frustrating and I can see you’re in limbo at the moment.
Having an owner go bankrupt is an especially trying problem for strata schemes and it rarely ends well. The problem is overdue levies are seldom the only issue. Also stung in these cases is the local council (rates) and the mortgagee. What can happen is the lot is sold, the proceeds from the sale are not enough to cover everyone and wrangling about the mess ensues with the only ones coming out of it unscathed the lawyers. I’m so sorry your scheme has got caught up in something like this and it can seem to drag on forever.
If a new owner has been found for the lot then maybe writing the whole mess off and moving forward is the most economical way forward.
Either way if you change strata manager it should not affect the working of the case. The lawyer has been engaged now and they should liaise with whomever the strata manager is, or even the committee.
Making a claim against your current manager will be a challenge since your first step will be to “prove” that there has been a loss created by the managers actions or inactions. And yes VCAT would be the way to proceed, though I suspect seeing a solicitor would be the next step in the process. Having gone through this more legal action might not be to the owners taste right now.
Hopefully this frustrating issue will resolve itself soon for you and the owners Cameron. I’m sorry I couldn’t shine a more positive light on things for you.
Hi Lisa
I find body corporate legislation sets rules but does not have the power to enforce them or couldn’t be bothered. Rules should be there to support but these do not. An owner is on their own. I am in a block of 4 units and even when no voting has occurred a couple of owners get together and contact the body corporate management to change the Minutes and suddenly I was said to vote yes when voting did not even happen. Not only that, work includes a part of land that isn’t common property and I have no power to change that. I spoke to someone from the body corporate commissioners office and to do anything about it I need to submit a complaint and be out of pocket for $155 before I even start the dispute. I have no confidence in being successful because I work in government and I know that legislation us just lip service. It does not support the average person. I will never buy a unt again. Very frustrated. I was told also that a body corporate management will do whatever as they want to be paid. They do not support or help function in accordance with the Act. It’s a joke!!!
Hi Marie
It sounds like you’re having a tough time of it. You are absolutely on your own in unit ownership, and it’s very much them and us if you find yourself disagreeing with the majority. It can be deeply unpleasant. It’s why I don’t own a unit: I don’t have a lot of faith in people especially when they’re in a collective position to control the outcomes I receive.
I don’t agree that the legislation is just lip service, or that making a formal complaint is not the way to go. For legislators it’s difficult to be in a position of “walking the line” between protecting owners’ rights and creating too much onerous red tape. Bodies corporate are heavily legislated as it is and adding more doesn’t strike me as particularly helpful.
If your rights have been trampled the framework exists for you to seek recompense. It’s up to you whether you choose to take it.
Hi Marie,
I live in an apartment building in Queensland with 22 apartments. We have very strong participation by the lot owners in the BC day to day operations even though we have engaged a strata manager.
In my opinion the voting rights of owners discriminates against those that have the higher lot entitlements even though they pay up to 50% more levies than the base apartment they still only get the same voting rights, ie one vote per lot.
I used to live in Victoria and owned an apartment in Docklands and can recall that some votes at an AGM were based lot entitlements.
Can you please comment and provide further info if this exists in Qld?
Hi Peter
It is the same here but happens as a simple majority by default. Any lot owner may call for a poll vote, or vote by contribution lot entitlements on any motion, though they should be taken automatically on special resolutions. The poll vote will overturn any vote by simple majority if the outcomes differ.
Hi
I am the owner of a unit in a complex of 4 in WA. The other 3 owners have at the last general meeting voted me to manage accounts, insurance, banking and all issues that may arise with the units. I have advised them that I live remote and I don’t feel I can take on the responsibility and have suggested if they don’t want to take on the job then we could get a professional management service to look after it. They are not in agreeance with this and I am not sure what to do. I am getting a lot of rude emails and it is getting nowhere. Can they force me to take on the management? Please can you give me some advice.
Hi Lester
No they can’t force you.
If you were here in QLD I would suggest you make an application to an Adjudicator to appoint someone to manage the scheme.
Hi,
My wife is the chair person, on a commitee of 11 unites, her first year, our body corp has set an extra ordinary general meeting, they called the meeting on the 14th November, to be held on the 14th December, only having received our agendas in the last week, we were shocked to see the first resolution, is a Resolution without dissent, for reduced timeframe for the meeting, which is of concern, as the body corp set the date, and one vote against will put the whole meeting out, but the body corp will still charge for the meeting, what can be done to get past this, and hold the meeting,
Hi David
That’s a technical question I’m afraid I don’t know the answer to. I didn’t think a resolution without dissent was required to waive the notice period but don’t have time to research it right now.
As your meeting is proceeding today I doubt there is anything you can do in the short term. If the motion doesn’t pass you can make an application to an Adjudicator to pass the motion on the grounds the opposition was unreasonable. And of course it is also possible the motion will pass. Even if the motion doesn’t pass I would ask the manager to continue the meeting to see how motions would have been made so that if an application is made the matters may be decided.
Hi have a question my mother has lived in the same complex for over 30 years and she’s over 70 the strata management and strata council have decided to do capital works on the whole building that are going to costs $500.000 dollars mum is a pensioner and already has to pay a Levy of 12k due to het unit entitlement being bigger now we have a strata meeting tomorrow night to talk about getting a loan and due to mums entitlement it looks like her repayments are 4K a quarter over the 8 year loan she’s looking at over 140k in repayments really for a pensioner and the strata management answer is oh well if she can’t afford it is to sell up really who is going to buy any of the apartments my understanding was that something as big as this it had to be 100% voted by all owners they had a 4/5 year plan to do all the works but some owners are insisting on doing all the work at once what are our rights.
Regards rob
Hi Rob
What a difficult situation. Unfortunately your strata manager is correct. When you share ownership of a building with others then you’re vulnerable to having decisions made you don’t agree with.
Your mother can certainly vote NO on those motions she does not agree with. Unfortunately the other owners may vote yes and majority rules. Resolution without dissent is required in a handful of situations only: making exclusive use grants or otherwise selling common property. It sounds like they’re repairing not selling so only an ordinary or special resolution is required, depending on the works entered into and their cost.
If the other owners vote YES there isn’t a lot you can do. You may challenge the legality of the meeting and the motion(s) passed, if you feel it breaches legislation, bearing in mind “I can’t afford to pay” is not a reason to challenge. But if there is some irregularity in the notice or form of the wording then you may challenge in that regards. I would suggest seeking legal advice if you plan that route.
Even if you validly dispute the passing of the motions it is more than likely only going to put off the inevitable.
I have a question. Myself and neighbouring lot have proposed a bylaw to give us exclusive use of the roof space (half each) for conversion to an attic room. A strata solicitor has answered any legal queries and now in the process of an independent valuation. When its time to vote are we (the benefiting units) still entitled to vote on the by-law or is this seen as a conflict of interest. We are a small block everyone is in favour of the proposal except one person. If we are unable to vote can she stop it by herself.
Hi Chris
Allocation of exclusive use, which is a form of sale of common property, must be by resolution without dissent. So yes, absolutely you and your neighbour are eligible to vote. Even those who would otherwise be disqualified (ie have a body corporate debt) will be eligible to vote, the issue is deemed so important.
That also means that the dissenting person can vote NO and the motion will fail.
That doesn’t necessarily have to be the final say though. You can make an application to the Adjudicator to have the motion passed anyway, citing as a reason that to vote no was unreasonable. Of course you will need to demonstrate that it was unreasonable. If the Adjudicator agrees the motion may be deemed passed.
In our block there are 53 units and one person owns 17 units. At either a General Meeting or Special meeting, is he entitled to 17 votes. I have been told he only should have 17/53 = 3 votes. Is this correct and if so which particular legislation provides for this. (I have looked but cannot find anything)
Hi Investor
No its not correct.
If there are 53 units and one person has 17 units then they have 17 votes. The balance owners have the rest.
Hi Lisa,
The post is really helpful.
The quorum example illustrated is actually what happened to us last AGM.
Our last year AGM, the quorum wasn’t formed, however, the strata manager(chairperson)still went through all the motions with those attended the meeting. One of the motion is to renew the strata agreement for 3 years. Two of the unit owners signed the contract on the spot. The adjourned meeting was scheduled 7days later, the strata manager chaired the meeting, no unit owners actually attend the adjourned meeting. The meeting minutes combined the first AGM and adjourned meeting, the outcome is all motions were passed.
Do you think we can go to fair trading to challenge the validity of the strata agreement due to
1.strata manager’s conflict of interest
2. We can prove the majority of the owners didn’t receive the notice for the adjourned meeting
Hi Alfred
Hmmm…. interesting question.
What you’re talking about is common practice. I’d say there’s a possibility you can challenge the agreement on the technicality of when the document was signed. If there is no quorum then the motion wasn’t actually passed until the meeting was reconvened. Technically that’s incorrect.
The argument for the other side would be that clearly its the will of majority of the lot owners that the agreement be entered into. By signing in advance are they not simply saving the owners a trip?
It’s hard to say how an Adjudicator would decide. I’m not sure what “conflict of interest” you’re referring to with your strata manager. The lack of notice of an adjourned meeting could be a contributing factor.
In our block there are 4 units and 4 voting rights. As agreed all 4 committee members voted for work to be carried out in August 2016. This decision was changed by the Chairman and a different project undertaken with 1 other vote. Is it too late to resurrect the original votes and continue with the motion? Is there a time limit that is put on the value of a motion and when work needs to be completed?
Hi Owner
The committee should action the motion if its been passed by the lot owners. If the original quotes are now expired or the works have somehow changed requiring substantial amendment then the matter should be re-quoted and voted on again. Since there are only four of you an email sent around where everyone agrees should be sufficient to proceed.
Hi ,
In my case back in 2011 sole use of common area was given to one owner as “note to a motion” even though original motion for exclusive use was lost during the same meeting. Now when I raised a question for that common area to be open as it was granted without legal right, and agreement that was made conflicts every page of the act regarding common areas, I was advised by BC representative that they are working on solution and probably owner will put same motion again but this time to lease that common area which they have been using as sole owners for 7 years. I think I read somewhere that you can only submit motion of the same substance once, and I was wondering is that correct?
Hi Maida
The substance of a motion may only be voted on one, at one particular meeting. So you should not have a motion to accept something, then following a motion not to accept something, or something similar.
The same matters do come up again and again at different meeting. For instance there are statutory motions that must be included in every AGM.
Thank you for the helpful article. What happens if a majority of lot owners pass a decision to alter existing common property that 1. removes amenable use of a common area and 2. negatively impacts the survivability of the minority affected lots by significantly increasing the risk of catastrophic loss of property, injury and/or death. Although it is not selling or leasing the common property, altering common property in such a way that it could possibly kill some of the residents should surely be decided by resolution without dissent or special resolution? – (either of which would quash the motion). If it gets passed by majority as an ordinary resolution, (which it looks like it will since it doesn’t seem to qualify for special resolution), what are the affected lots’ options to overturn it? QCAT? (P.S. Government Authorities at both local and State levels do not dispute that the changes constitute significantly increasing the risk of injury or death of the affected lot owners). Thank you.
Hi Chainie
The body corporate is required to keep the common property safe and well maintained. If you feel that the change would cause risk then seek an Adjudicators Order the matter be stopped (including an interim order if necessary to stop implementation) as the change would cause an unsafe environment.
Thank you so very much.
Great article! Can you tell me if voting papers can be accepted between original the date of an adjourned EGM and when it was reconvened?
Also can you clarify the part that says a quorum is 25% unless there are three or more voters and 2 are present.
Just had an egm where there were 3 or more valid voting papers in addition to 2 owners being present physically yet it was adjourned due to no quorum. Then some more voting papers ‘magically’ appeared and were counted at the reconvened meeting giving the complete opposite outcome as to what the outcome would have been on the original votes.
Hi Hope
Yes voting papers may be submitted between original date and adjourned meeting. That is in fact why the meeting is adjourned, to get additional votes!
A quorum is 25% of voters. The only difference is if there are only a small number of lots, like for instance 3 lots. In that instance 1 voting paper is 33% and one person must be present.
Your quorum will depend on how many lots in total there are. If there are 20 lots, the quorum is 5 with two voters present (not two from the same lot as that only counts as one vote). If there are 100 lots, the quorum is 25.
Things get complicated if there are less than 5 lots. If there were 3 or more valid voting papers and two present then I suggest there is more lots in your scheme.
Hello Lisa,
To clarify on voting, if one individual/entity owns several lots, they get a vote for every lot – even if their lots are all under one name?
Hi Lyn
Yes, one lot, one vote.
Its irrelevant how many lots one owner has so long as they cast only one vote for each lot. Indeed the original owner once owned all the lots in the scheme. They can then pass any motion they choose, within legislative framework of course, because they have all the votes.
Hi Lisa,
This may be a different question, but we have just purchased a unit in a block of 8 in QLD. We were not alerted to any changes that were to be made to the property in our contract or the searches we did with our solicitor. However, just last night we have found that there was an NBN box and large piping placed along our exclusive use courtyard wall (ground floor unit) to service all the apartments above. When we contacted the BC they said that back in December 2017 (we bought in January 2018) that no one had objected to the plans. We want to get this removed off our wall or at least have to placed elsewhere as it really affects our private area’s outlook as well as the value of the property if we cannot have it moved. Is there any way to challenge the BC to have it removed or changed as we did not know this was happening? Thank you for your help. Emily
Hi Emily
That is an interesting question and I’m afraid I don’t know the answer. You need to speak with a Solicitor.
My initial thought is it would be costly to move so there is little chance of the body corporate volunteering to do it. You might be able to insist though. Again, a lawyer may be able to help.
Hi Lisa,
Our Manager has applied for a 5 year extension to his Agreement and it will be put to the upcoming AGM. He also owns a lot in the complex. Is he able to vote on that motion or is he excluded?
Hi Loris
Yes the Manager may vote as a lot owner.
Hi Lisa,
I recently sent my vote and my colleagues vote by email from my computer. The votes were not presented to the EGM and consequently not counted. I am advised that I need to lodge an application with the adjudicator to get the result (not in our favour) overturned and that the votes maybe considered invalid because they were sent from my business email. Can you respond please.
Hi Carol
To send your votes via email, and have them be counted, your body corporate should have resolved, at a previous meeting, that motions sent electronically can be counted. If not, then the votes were invalid. It could definitely make a difference that your vote came from your business email. To accept electronic votes you need to be able to identify the lot owner voting. Usually that’s done by comparing the email address from whence it came against the roll. It will also matter regarding your colleagues vote.
I’d suggest that you find out the reason that the votes were invalidated. Once you know that you can assess whether its worth the effort of making an application for adjudication. Discuss with the Commissioners Office and see what they say.
I’ve assumed the two votes will make a difference to the outcome of the motion. If not, then it doesn’t matter whether they’re valid or not.
Hi Lisa
I have a question regarding strata law. We are a commercial group of 7 retail shops in South Australia. I personally own 2 and the other 5 are owned my another person. Our ownership represents 27.4% of the complex.
The other owner has allowed a particular tenant running a pizza bar the use the common property at the front of his shop under the front verandah for additional dining and at the rear of the shop under the verandah to use as a prep area of food. Now both of the said areas are common property and yet no approval was obtained to allow this tenant to operate in this manner.
I have discussed this with the body corporate and he is reluctant to make a hard and fast ruling to terminate the use of the common areas by this tenant. When asked why, he explained that strata law can not always be hard and fast as it may be presented before a judge and depending who you get they may allow the tenant to operate on common ground despite no approval given.
Can you please explain to me if this is a cop out on behalf of the body corporate to not enforce the articles in fear he may be loose his position and a new body corporate will be elected.
I feel that his role is to enforce the articles if there is no approval given and to make sure the common property is not used at will and without the proper approval given by voting.
Can you please give me your view on this matter.
Regards
Romeo
Hi Romeo
I’m not sure about legislation in South Australia. It is different from QLD. We have by-laws, not articles.
That said, common property is owned by all owners jointly. In QLD to make an allocation of common property then a resolution without dissent via general meeting is required, meaning that all owners get the option to vote on the matter and if anyone disagrees then the motion is lost. No one is able to say “here take some common property”. Its not their property to do with as they choose, rather body corporate property and all owners need to agree on its use.
If the common property is just being ‘used’, not permanently allocated, then again a motion at general meeting should be passed. I would expect the body corporate to enter a formal lease in that regard.
The committee can allow use of common property in some circumstances: say a resident had a long term visitor and applies to allow that visitor to park in the visitor car space whilst they’re here. In that case I would expect there to be a specific time frame expressed, limits on the use, and the application made before use starts. There will be further issues here regarding conflict of interest for committee members. So for instance, the committee voting to allow a member of committee to park permanently on common property would breach codes of conduct. The committee must act in the best interest of all owners, not simply a few.
Of course, all this is subject to someone challenging the situation. Lots of schemes do lots of things that breach legislation. Unless one of the owners takes action to challenge then they usually get away with it.
Also check the by-laws. They may specifically exclude use of common property for any reason.
Hi, I have a not-so-unique problem with the body corporate when I have an investment unit.
Is is managed under the QLD BCCM Act Small Schemes Module. The building is 4 years old and has been under-levied since the beginning. There is a story behind that for another time. We have been hit by changes to legislation, such as the Fire Safety Compliance and Cladding Register obligations. It has all cost money that was not budgeted for. Well, it was, but a majority of owners have continually voted to not increase annual levies to meet the necessary commitments. The Sinking Fund has therefore been used to pay the outstanding bills. Now, there is no Sinking Fund left and we have levies that do not meet the minimum annual expenditure required from the administration fund. I have now got involved more closely with the operations of the body corporate and am compiling the budget that we desperately need. I am going to submit this budget and levies as a motion at the AGM.
My question is, if the motion to increase levies fails at the AGM, what are the options to get the right amounts levied?
Can the BCCM Referee make orders to overturn a vote at a general meeting and set suitable levies in this case where we have a majority of recalcitrant owners?
If something is not done, we will not have enough money to pay the body corporate bills and we will continue to have zero sinking fund balance. The deficit is now almost $8,000.
Hi Mark
This is a serious breach of legislation. The body corporate is absolutely required to raise levies enough to meet their projected budget. You also cannot use the sinking funds to prop up the administrative funds. Any deficits need to be repaid in the year following accrual.
You’re on the right track. Submit the motion with a budget of what is required to get back on track. Ideally an additional special levy would be raised that would repay the deficit.
If owners do not support the motion at AGM, and lets be honest, they’re probably not going to, then yes, you can make an Adjudication Order that the motion should be deemed passed. Actually, you can already make an Adjudication Order if the AGM is not pending, seeking to have the body corporate ordered to raise a special levy immediately to recover the deficit and follow rules regarding budgets and levies at the next AGM.
Hi Mark
Just an addendum: if you do seek an order now you must have first tried to self-resolve. It will be easier to demonstrate if you’ve submitted a failed motion to AGM.
Thanks for your advice Lisa. At least there is a plan and a contingency now.
Our AGM is next month and my plan is to try and convince enough owners to face reality and agree to the increase. I was only considering an application for a Referee’s Order if we fail to get a proper levy set at the AGM. After all, it is still the easiest solution to get a favourable vote. Just need to have my ducks in a row before then.
As you say, with a well written Explanatory Schedule to the AGM motions (my job for this weekend) and a failed vote, I should have the attempt “self-resolve” box ticked.
Hi Lisa,
We own a lot in a Qld standard module (not building module) strata community which has its AGM coming up soon. One of the motions put by another lot owner was originally listed on the meeting notice as a ordinary resolution. In amended notices (yes, plural) the resolution has been listed as a resolution without dissent. The motion involves allowing an expansion to the original colour scheme for buildings to include more contemporary colours. In general terms, the relevant scheme by-law says that the colour scheme cannot be changed without prior approval by the Body Corporate. This indicates to me that the body corporate can allow a change of colour following a resolution of the body corporate (which could be the committee???) I do not see that there is a change in by-law required (is this correct). Should this be a resolution without dissent, or an ordinary resolution. When attempting to find out which matters are required to be settled by a RWD, I keep coming up with the same two examples, which relate to common property. As all lots here contain stand alone buildings, and the motion is written to allow for a colour change to indvidual homes, there is no common property involved. Is there info available on just what issues are required to be settled by resolution without dissent? I would appreciate your advice.
Hi Johnson
Motions by resolution without dissent are required on all matters relating to sale or purchase of common property or allocation of an area of common property as exclusive use for a lot. A resolution without dissent is required to extinguish the scheme as well.
By-laws can be changed by special resolution.
Improvements should be approved by special resolution. Change of a colour scheme is an improvement and usually requires a special resolution.
But schemes are allowed to set their own restricted issues and other matters. Motions could have been passed that this matter must be decided by resolution without dissent.
See how the motion fares. Are you for or against? If against, vote NO and the matter is settled. If you’re for, vote YES. If the motion fails to pass there will be scope to seek adjudication as the resistance to the improvement is unreasonable. Or alternatively, not voted on correctly, though this objection will likely lead to another vote.
Hi Lisa,
Thanks for the reply. You ask the question am I for or against. I am for the motion.
If the motion is not reclassified befort the AGM, can a proceedural motion be used prior to the motion being put, to change the classification?
Hi Johnson
Owners at the meeting may vote to amend the wording of the motion. I’m not sure if that includes changing the type of motion. The changes so far make the motion on rocky ground to start with, particularly if its an issue people are passionate about.
Check with the strata manager as to why they changed the classification. They may have obtained legal advice and have good reason for changing.
Hi Lisa,
I am unable to find anywhere in the QLD BCCM act or regulation (standard module) where a motion, which if passed, would not involve spending over the major spending limit is required to be accompanied by two quotes. Can you help with this please?
Hi Winston
If you haven’t already check the regulation module for your scheme.
Hi Winston
I’ve just re-read your comment and realised I hadn’t understood. If the matter is under the major spending limit only one quote is required. Your scheme can pass all sorts of motions though, including one to require two quotes for any works. You’d need to also check through your schemes past minutes to see what motions have been passed.
Hi Lisa,
We bought an appartment in VIctoria some 3 years ago,1 of 8. it has a small backyard which has been fenced off and has been like that in excess of 30 years. The fence is providing a level of privacy as the bedrooms face the garage. It is deteriorating at a rapid rate.
We explained that the upcoming costs in demolishing the fence for safety purposes and the need to then landscape the area would be on all members of the Body corporate.
We have requested a peppercorn lease and advised the BC we would pay to have the fence removed and changed like for like, and have submitted a Special Resolutions Ballot.
So far we have 5 yes votes. The other 3 have not returned their votes either way.
We have been advised by several other owners in apartment blocks that failure to respond is deemed as a yes vote. Can you please confirm if this is correct ?
Hi Georgia
No, if someone doesn’t vote then they have not voted.
The motion will be carried, or not, by those that do vote. It is common in the body corporate world for a core group of owners who vote at meetings to govern what happens in the scheme.
The body corporate is going to install a shared parcel box. I listed 17 concerns including:
Our parcels are intended for OUR address NOT a communal receptacle. Any courier on seeing this communal arrangement can take the package for themselves, secure in the knowledge that it is a communal address and there is no recourse for the recipient whatsoever. Privacy. I consider it a federal offence because deliverers are being redirected to leave our parcel in a non-secure manner rather than delivering it to our house, like they currently do. My concerns have gone unheeded and quotes are now being done.
Have you come across this issue before? Can a body corporate really interfere with my mail service in this manner?
Hi Chainie
No a shared parcel box is not common.
Issues with post and parcels however are common. Bodies corporate are considered private property by Australia Post. It is possible, common even, that the postie will not deliver to a body corporate if there is not a letterbox array outside the scheme land which can be accessed without needing to go through security. Placement of the letter boxes is a big deal.
Some schemes try to get onsite Caretakers to accept parcels, and some do, however this is normally outside of the scope of the Caretaking Agreement and done at an additional cost to the body corporate. Most will not do it due to the liability that attaches.
The matter of delivery of mail is really between the addressee and the carrier. Complications arise because the address is considered by the post office to be at the front of the body corporate, not the unit or house within.
If you wish to complain regarding the communal parcel box maybe discuss with Office Commissioner Bodies Corporate and consider seeking Adjudication on the matter. Alternatively address your items to a different location.
Hi Lisa I own 1 of 8 units and I’m based in victoria. We have two seperate buildings four in each building. We have hired a structural engineer because of cracks in the buildings. The report states that the building that I am in is fine and only needs minor repairs, the second building states that the building has major defects and needs urgent repairs either demolition or underpinning. My question is that the owners on my side of the building feel that underpinning will be very costly and may only be a bandaid solution. If a vote is taking place and it’s 4 for underpinning and 4 against what happens? Also if we agree to underpin the other building who pays for the repairs? Is it divided up by 8? or does substantial benefit play a part.
Hi Jason
Wow, that is a complex situation. I suggest both owners and body corporate seek legal advice regarding the situation.
I think there is some capacity for arguing substantial benefit has a part to play, but equally I see the argument that common property is common property regardless whether its in a separate building, and that means the matter is body corporate responsibility.
Some searching for previous decisions needs to be carried out here, including potentially further challenges. Hence, legal advice.
Our BC insurance comes due each year in Dec. We don’t have our AGM until March so the committee signs off on the policy. One of the owners has asked that either the insurance renewal date be changed or AGM be changed or an EGM be held so owners can vote. BCM or committee is not keen on any of these solutions. What would you suggest?
Hi Janice
Each body corporate has to confirm their insurance details each year at AGM – its a statutory motion. For most schemes though what that means is they resolve agreements about the renewal.
Getting quotes for a motion to select to be voted on at the AGM would not an easy process. Insurance is dynamic, extraordinarily complex, and action needs to be taken reasonably quickly: the body corporate cannot be without insurance or everyone’s mortgage becomes invalidated. AGM’s or EGM’s need a month lead time for Notice periods which may be too long before acting on an insurance quote. And what happens if owners vote NO?
I think its one of those things that strata managers do a certain way because over time its proven to be the most reliable. That doesn’t mean you can’t change as suits your scheme. Rather that there might be a bit of tooing and froing sorting out what works best.
Hi Lisa, we are looking into buying into a standard format plan consisting of about 30 lots. However, reading the minutes there appears to be a single owner who owns approx 10 lots and receives a vote for each lot. This owner sits on as Chairman and his wife as Secretary (no treasurer) and basically whatever he votes for, prevails. I also know this owner pays himself a substantial sum of money to provide maintenance of the common areas (verge mowing etc). It is managed by a strata manager and the financials seem robust (plenty of money in sinking fund, from what I gather) but I have significant reservations about buying into this type of scheme where one owner appears to control the entire body corporate. Does an owner get a vote for every lot they own, is this normal? Does this set off alarm bells in your mind? Thanks.
Hi Ryan
You cannot do anything about the majority lot owner. They own the lots, therefore they have the right to vote how they choose and if they have the votes they can direct what happens. Majority rules in a body corporate I’m afraid. You’re right to be concerned.
Investigate the arrangement regarding paying for services. It is a conflict of interest for a committee member to vote to engage themselves to carry out works. If there is a formal agreement then they may not sit on committee at all, other than in a non-voting capacity. Find out what the arrangements are and check with Office Commissioner Body Corporate if allowable under regulations.
Hi Lisa, I did as you suggested and in fact there is a previous dispute lodged with the adjudicator for precisely this reason (maintenance and spending transparency). The adjudicator found that as there was no ‘formal’ service contact entered into (just a member of the body corp doing various non-specific maintenance) the concerned members were unable to remove them from the body corporate committee. This was many, many years ago (approaching 2 decades) and it appears the situation remains to this day. I do have significant concerns about entering into this scheme, I will keep investigating but am getting a bad feeling about this one.
Hi Ryan
Ah …that’s unfortunate. Combined with a majority owner I share your concerns.
HI Lisa
We have a family with of 3 majority ownership who want to remove the body corporate swimming pool, they know they need a motion without dissent and have orchestrated that all committee meetings be by VOC with confirmation emails and the last EGM when advised a quorum could be met refused to allow a quorum, ran a teleconference took votes, tallied etc , closed the meeting, asked the minority owners to send in voting papers which we did not do, as we were told once the votes were taken there was no need to send in voting papers. 2 weeks later we received the minutes that stated the Chairman called no quorum then when we queried the strata manager , they said they called no quorum but counted our votes in the minutes when they never technically had a meeting.There was no announcement of a quorum no emails to say there would be a meeting in 7 days but minutes saying there was. The AGM is coming and the strata manager refuses to hold a physical agm, and wants the same process to take place eventhough the minority owners can hire a room that will cover the covid 19 social distancing rules. Now seeing your article think this is how they will get around a motion without dissent rule.
Hi Mary
There is no way to get around the resolution without dissent, so long as you ensure you vote. If you dissent from the motion and vote NO, submitting your voting paper promptly, then your vote has been registered.
Its only if a quorum is declared when you haven’t recorded your vote that you will miss opportunity. The Office Commissioner Body Corporate has noted that teleconferencing for meetings does not invalidate the meeting though the same rules regarding quorums apply.
Assuming you’ve submitted your voting paper promptly then if your vote is somehow not counted then you would have a valid reason to object to the passing of the motion and could lodge a QCAT application.
Hi Lisa,
Love your work! I have an enquiry about an unreasonable By-law that my Body Corporate now wants to enforce on our apartment on the Gold Coast. Being the Gold Coast, the apartment (standard module, BFP) is best utilised for Short-Term Accommodation. I voted on and naively agreed to a change in the By-laws in 2018 without considering it much because it was on a long list of resolutions that I just ticked. The By-law requires that all units that have short-term letting to get Town Planning Approval from Council.
The Body Corporate is not negotiating and is getting very pushy for the Town Planning Approval. Apparently a lot of Body Corporate’s are trying to remove the ability for unit owners to lease short-term, and this is how they are doing it, because Town Planning Applications are very expensive.
I have purchased the original Development Approval from Council and found that it was for an ‘Apartment Building’, and the definition of ‘Apartment Building’ in the GCCC Planning Scheme at that time included ‘Serviced Apartments’ and the definition of ‘Serviced Apartments’ does not preclude short-term letting — it refers to an apartment “where domestic, housekeeping or catering services are regularly provided to each apartment by a person who does not occupy the apartment. This term does not include a residential hotel, resort hotel, motel, hostel accommodation or backpackers’ inn.” So technically, this building is suitable for short-term letting, but the By-law is still in place in the CMS.
I have also been told that By-laws cannot be discriminatory, and that this includes discrimination against short- and long-term letting. Therefore, this By-law is unenforceable and unlawful. Is there a way we can easily and simply ask for the By-law to be removed? Does it require a Special Resolution again to remove it, or would we be better going to the Adjudicator to resolve this?
We are just really sick of dealing with a completely unreasonable Body Corporate that immediately blames us for every problem before they bother investigating further and finding the real culprits! We would never stand for being a ‘party house’ and we pay for a real estate to deal closely with the occupants, so why are we are constantly being harassed?! The constant bombardment is really starting to stress us out!
Hi Heidi
There are two ways you can change the by-law. No. 1, as you said, requires a special resolution at general meeting to amend the by-law. Since the original motion was passed you might struggle to get this done.
No. 2 is to have an Adjudicator make an order the by-law is invalid and should be overturned. I suggest in the first instance discussing the matter with the Office Commissioner Body Corporate before lodging the application. See what they say. I would also suggest you consider legal advice here. Any legal action, even Adjudication is a roll of the dice. You may not win. From the perspective of the body corporate as soon as you make the application their first response should be to appoint a Solicitor. You might find yourself potentially paying legal costs of the body corporate if you loose, hence worth getting advice before going into the matter.
This is a novel way for the body corporate to stop short term letting. I’ve not seen it tested in Adjudication before but that doesn’t mean it hasn’t. You could also have a troll of Adjudicators Orders here to see what you can find.
Hi Lisa
I’m doing some research for client who owns one of four units in a registered strata scheme. Each unit has equal entitlements. Two owners always vote together as do the other two owners. Two of the unit owners believe the strata managers only act in the interests of the other two unit owners and want to appoint a new strata manager to represent everyone’s interests. Everything is deadlocked, no decisions can be get made. Do you have any suggestions?
Hi Simeon
Negotiation is your best bet here. In a body corporate majority rules. If there is no majority, well that is a decision as well.
If one group or another is breaching legislation then the other parties may seek Adjudication or Conciliation on the matter.
Owners in a body corporate are also required to be reasonable. So you could challenge a decision on the grounds it is unreasonable to oppose the motion. I don’t think that would apply to wanting to change strata manager however. Its reasonable to want to stay with someone who listens to you. It would be unreasonable to vote against renewing an insurance premium or approving a change another owner is seeking, unless of course there are valid reasons for objecting.
Thanks so much for your reply Lisa, it is much appreciated!
Hi. An interesting article!! In Queensland, do you know who can vote to accept the minutes of the previous AGM? I thought you had to be at the previous AGM to be able to vote to accept, but the Body Corporate Manager of my unit block says that attendance at the AGM is not necessary and that any owner can vote.
Hi Pam
I agree with your body corporate manager. Any owner can vote, though of course, if you weren’t there its best to abstain.
Hi Lisa
I own a lot within a 30 lot Body Corporate in Victoria.
About 20 years ago at AGM we elected NOT to have a Committee Chairperson of our OC with all members to be of equal standing. Actually no one wanted to be the Chairperson. The Manager is the meeting Chairperson and has done an excellent job all of these years. Some months ago we have a new member in our OC who is now insisting that this is not possible even though we have functioned extremely well without a designated committee chairperson. Majority of members still do not want a committee chairperson. What is your view on this please ?
Hi Carol
You will need to check with the Victorian legislation.
Here in QLD you would need to have a Chairperson, despite owners not wanting to have one. That is how the legislation is written and there is not an option to opt out of that. And, if an owner wants legislation to be followed that is enforceable via the courts.
I’m not sure what difference it makes. The Chairperson chairs the meetings. There is no additional power that a Chairperson has.
Hi Lisa,
I own 1 lot in a block of 7 Units. On one side we used to have 2 houses along our boundary, but the low-level house towards rear was demolished and replaced it with 3 x 2 storey Townhouses.
Owner Unit 4, 1st story at back of our unit block, says his privacy has been compromised, even though there is a high retaining wall along our boundary, he says they can still partially see over the wall into his bedroom.
He has obtained 2 quotes and wants to put forward a motion for the the Body Corporate to pay for 4 x screening trees to be planted along the boundary directly across from his unit only. I have asked for additional information about the tree types, specifications (height, width), mudmap of where the trees will be planted, ongoing growth and maintenance plan and costs, what is potential for overhang to the new neighbours in the future, what if scenarios around possible damage to our building, roots, rainwater, etc. He has not provided any of this information.
Background: We had issueS with the previous neighbour trees causing significant damage to our property at that end of the building (his laundry door and frame being fully replaced because of water damage). He lodged claim to QCAT; and yet he now wants to plant these trees in our yard that will require ongoing maintenance and potentially cause damage.
He is currently managing his privacy until these trees reach maturity in 1-2 years? I verbally proposed that a more cost effective alternative would be to install external privacy screens that would be less maintenance and definitely not cause any damage. These privacy screens could also be installed on other unit windows on that side of the building, and at the front of building, for both privacy and weather.
Firstly what type of resolution can this be classified as… resolution by consent as he is requesting to benefit his lot? Or is this just standard resolution with majority voting approval. Unfortunately, very few owners vote, generally only 3 (myself, this Owner and one other); therefore if this motion falls in his favour with these trees will be planted without everyone fully understanding the future consequences.
Can his request be deemed as “187 Improvements to common property by owner of a lot” — ie make him pay for the planting of the trees and ongoing maintenance as his full responsibility (rather than Body Corporate) as only he is benefiting from these trees being planted on common property; yet BC will be paying for these trees the next 20 years OR is his request deemed as “186 Improvements to common property by body corporate”?
I’m very uncomfortable with this situation and looking to try and block this motion or find a way to put forward the alternative option of privacy screens as a cost effective long term solution instead.
Hi Linda
If the motion goes to general meeting then you, as an owner, can submit a contrasting option. They should then be grouped together as a group of same issue motions. Essentially the owners will then have the option to vote on which motion they prefer.
If his motion is passed, and at body corporate cost, then I suggest seeking an interim order that the works not proceed because 1) the trees have already caused an issue and shouldn’t be replanted, and 2) if they are replanted they should be at that lot owner’s cost, since they get the benefit and should therefore be responsible for maintenance. Or part thereof I suppose.
In my opinion it is reasonable to be wary of these trees, given the damage and works already done. An Adjudicator may not agree but I don’t think its malicious to object.
So to summarise, try and get your own motion passed instead of his, and if that doesn’t work, try and block the works from being done. If you feel your case is strong enough you could simply seek an order that the trees not be replanted. Maybe discuss with Office Commissioner Body Corporate first.
Hi Lisa, thank you for clarifying the steps. 2nd para you mention “suggest seeking an interim order that the works not proceed”. and final para you mention “simply seek an order that the trees not be replanted”; …. who/where exactly do I raise an interim order and/or order with? Can you direct me to the appropriate website.
Sorry Linda. It often assume everyone knows what I’m talking about.
The Office Commissioner Bodies Corporate offers dispute resolution for bodies corporate. Its essentially a “body corporate court” with low cost to access.
You have a dispute with the other owner. I suggest you discuss your concerns with other committee members or owners and even the owner who is seeking to plant the trees voicing your objection to the trees and why. It doesn’t need to be a fight, and you have an alternative with the screens. There might be a further option that would suit you both.
However, if that doesn’t work and you’re still not convinced this is a good way to proceed despite others agreeing, seeking an order to stop the planting might be the next step.
In the first instance its always better to try and negotiate a solution between yourselves, and having done so is a requirement of the dispute resolution process. Discussing with the owner and submitting an alternative motion would most likely be considered an attempt to resolve.
If you go through those steps and you still haven’t reached a compromise, formal action is your next step and the OCBC can help you with that.
I own a lot in a 24 unit building in qld on the Gold Coast. There is an outdated building sign that council have told us needs to be repaired. The BC committee wish to remove the sign instead of repairing and continual maintenance. I agree. However the building managers want to repair and keep the sign. Our body corporate managers have told committee we do a motion and owners vote as ordinary resolution but building managers insist it is resolution without dissent. Is the sign an asset or now part of common property? All owners I’ve spoke to want to remove outdated sign except new building managers. Can we vote to remove it under ordinary resolution?
Hi Lynette
Removing the sign would be considered an improvement. The Office Commissioner Body Corporate has published these guidelines re improvements.
To me it looks like the cost would make this eligible to be done by committee resolution.
Given the contentiousness of the issue it is likely better done at general meeting, as it appears you’ve already decided. Then, given the cost limits for changes, I suggest and ordinary resolution would be fine. If owners wanted to be very sure that this is the majority owners decision, then a special resolution could be passed.
A resolution without dissent applies when a part/all of the common property is being sold or an exclusive use grant made.
If the Caretaker object so strenuously then the decision could lead to an adjudication application, whatever you do. Is there a way to negotiate a solution that is acceptable to all parties? Such as replacing the sign with a new sign?
Hi Lisa
Thank you for your information on meetings and the requirement of a quorum, our committee did not reach a quorum for their last meeting would the same rules required for a general meeting on the timing of the next meeting be the same for a committee meeting.
Hi Sandra
At least half of the voting committee members must be present to form a quorum. So quorum will depend on how many members of committee there are.
Hi Linda,
I am an owner/investor of a unit in Queensland. There are 6 other units in that plot and since last year until now, we have been disputing along with 3 other owners about the cost of a wall which was approved by the chairman of the committee. The cost of fixing the wall was $27,000 and it was the wall of the chairman’s unit.
We are disputing it because the fix was approved by the chairman himself without seeking a review from the insurance company to establish if insurance will cover the fixes, there was only 1 quote from a single tradie. There is more to this as we have done our investigations.
Now, about 4 months ago an EGM was called to discuss this cost. 5 owners attended this EGM.
Please take note, that at this point, the cost had already wiped out the body corporate’s sinking fund of $19,000 and the chairman himself paid $8,000 to make up the remaining cost. The EGM was called by the chairman to get everyone to vote and agree to paying him back the $8,000.
Prior to this meeting, we our investigations and along with one other owner, voted against the special levy of $27,000, while 3 others (including the chairman) voted for it. As this was a special levy, they needed 80% of the vote in order for it to pass. So in this instance, it got denied. The chairman, was obviously upset.
Fast forward to September, another EGM to vote for the same reason. This time, the chairman changed this to an ordinary levy/resolution, which means he only needed 50% of the votes to go through. Fortunately, we managed to reach out to 2 other owners who did not attend the previous EGM and explained the situation. At the EGM 4 owners voted against paying for the $27,000 and therefore it got denied again.
Today, we just got an email from 1 of the committee members that another committee members EGM/meeting will take place on the 26th of Oct, and will be (again) voting for the same resolution of the $27,000. As there are only 4 people in the committee of which 3 of them (including the Chairman) are in union versus 1 member who is against the resolution – this will mean the motion will be passed and therefore everyone will need to pay up for the $27,000.
We are at wits end with this because the motion gets raised all the time. So what kind of power does vote s have when a matter like this, which has been denied twice can still be brought up in various ways until the chairman gets what he wants? We are out of solutions and we feel like we paying for body crop levies every month and the rules and regulations do not apply. What is the use of calling for EGMs and AGMs when votes don’t matter?
Hoping you are able to shed some light on this issue and provide some advise for us.
Thank you.
Hi Daniel
There’s quite a few things going on here. Firstly, it would be good to establish if the works were 1) required, and 2) to common property. If not required then it is an improvement and requires a special resolution. If not to common property then the owner it was for is responsible, not the body corporate.
Next, you can submit motions too. If you can answer the questions above I suggest you submit a motion for general meeting that the works were either not required, not to common property or whatever else you believe is in dispute. Please note, if required, and to common property, then the works are the body corporate responsibility.
You could submit a motion that the motion to reimburse the Chairperson not be raised again. Or whatever you’re seeking.
Discuss this matter with the Office Commissioner Body Corporate. You have a dispute. You need to get clear on the questions raised above to establish whether the works were body corporate responsibility or not. If not, then absolutely object to the motion, either when it passes, or as an interim order.
Hi Lisa, hope you can help! Can a current committee rescind a resolution of a previous committee?
Hi Warren
Yes, absolutely. It may lead to additional issues but they can and should rescind if the motion is not going to proceed.
Hi,
Two lot owners sold their property with settlement prior to an EGM.
can they vote for the EGM? or is the new owner entitled to vote?
Hi Maria
The owner on the roll at time of the EGM is the one that is entitled to vote. Assuming the form 8 changing ownership is submitted prior to the meeting then the new owner is entitled to vote.
If the form 8 was not submitted you’d need to seek adjudication on the matter. Its unclear as the owners who sold would still be on the roll, but it seems unreasonable for them to still be able to vote. This then becomes a legal question requiring investigation of past decisions.
Your first step is to find out who is on the roll and when that change was made.