This question is from ACT on whether it is discriminatory to use technology to communicate if not all owners can access the information.
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Question: Our owners corporation relies extensively on technology to communicate, meet and make decisions. A new owner wants all communications to be posted and all meetings to be in person – or it’s discriminatory. What options do we have to continue business using modern technology?
A new owner in our complex has no email address, does not like to install apps on their personal mobile device, and have said they do not like to use the internet, except for work.
Our strata management agreement states that all communications and notices are to be sent by email and general meetings can be online. The EC relies significantly on email to communicate with our strata manager, each other, other owners and to seek and action quotes. We store all of our records on Google Drive and meet on Microsoft Teams. We have many owners who live interstate (including EC members) so this suit owners and seems to be an efficient method of business.
The new owner wants to attend EC meetings and has said EC and general meetings must be in person and all communications must be sent by post – or it’s discriminatory. The postage costs are being charged to the OC. If the owner wanted to join the EC and did not wish to use these methods of work, could they force the EC to adopt different methods of working to suit them?
What options does the EC have to continue business using modern technology?
Answer: The “new owner” cannot require the other owners to take a different approach if they are unable to convince the other owners of the merits of his or her position.
Email Communication
Part 19.5 of the Legislation Act applies to a document that is required under a law to be served. Section 247 provides that a document may be served on an individual by emailing it to an email address of the individual. However, if no email address has been provided, this provision could not be relied upon.
Otherwise, section 124(1) of the UTMA provides as follows:
For this Act and the Unit Titles Act 2001 (including an application for a court order under either Act) a document may be served on a unit owner or anyone else with an interest in a unit or the common property on a units plan by—
- sending it by prepaid post as a letter to the relevant address for correspondence recorded on the corporate register; or
- if the latest address for correspondence recorded in the corporate register is the postal address of a building or unit on the land—placing it in a letterbox for mail addressed to the building or unit; or
- serving it in another way directed by the person to be served.
Note: The methods of service provided for in this section are in addition to methods of service provided for in the Legislation Act, pt 19.5.
Meetings
The amendments to the UTMA which came into force on 1 November 2020 are summarised inthis article: Commencement of Unit Titles Legislation Amendment Act 2020
Executive committees may authorise an executive committee meeting or general meeting to be held using a method of communication, or a combination of methods of communication, that allows a member taking part to hear or otherwise know what each other member taking part says without the members being in each other’s presence. Examples include phone or satellite link and internet or intranet link. A member who takes part in a meeting is taken, for all purposes, to be present at the meeting (s2.8(3) schedule 2, s3.1(2) schedule 3 of UTMA).
Further, an owners corporation may, by resolution passed at a general meeting, agree to a way of voting on a matter, or class of matters, to be decided by the owners corporation. A person is entitled to vote on a matter only if person would be entitled to vote on the matter if the matter was considered at a general meeting (s147(1A), s3.31A schedule 3, regulation 10 UTMR)
As ACAT observed in LEONARD & ANOR v MICHIE & ORS (Unit Titles) [2019] ACAT 14, “Owners corporations operate as ‘mini-democracies’, with all owners automatically members of a governing body, which generally by a majority of votes makes rules and elects the executive committee to act on their behalf, and which executive committee in turn generally operates on the basis of a majority of votes”.
In short, as the owners and the executive committee have resolved to operate in a particular way which is in accordance with the Unit Titles (Management) Act 2011, the “new owner” must comply with that particular approach. The “new owner” cannot require the other owners to take a different approach if they are unable to convince the other owners of the merits of his or her position. Further, such a situation does not give rise to an oppression of a minority of owners case.
Christopher Kerin Kerin Benson Lawyers E: enquiries@kerinbensonlawyers.com.au P: 02 8706 7060
This post appears in Strata News #633.
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