NSW: Q&A Positions on the Strata Committee

These questions from NSW Lot Owners are about positions on the executive committee.

Table of Contents:

• QUESTION: Our chair passed away. How quickly must we hold a meeting to elect a new chair? Can our secretary informally take over the position until the next AGM?
• QUESTION: A tie vote for numbers on the committee resulted in the exclusion of three willing members from contributing to their committee. Why can the owners corporation determine committee size?
• QUESTION: Can a building manager be on the committee or is this a conflict of interest?
• QUESTION: If a strata committee member is overseas, can they appoint a replacement to attend the committee meeting? If not, can the absent member attend via video conferencing while other committee members attend in person?
• QUESTION: What is the ideal number of members for an owners corporation committee, and why?
• QUESTION: Our chairperson resigned six months ago. Do we have an obligation to replace them?
• QUESTION: If the committee is elected at the AGM, but vacancies can be filled at other general meetings, can a GM amend the number of positions on a committee?
• QUESTION: Does an owner need to attend the AGM in person to be nominated to the strata committee or elected to the office of treasurer, secretary or chairperson?
• QUESTION: Do the recent changes to the legislation mean that the mother can no longer sign over her proxy to the child?
• QUESTION: I am an owner and also on our complex’s owners corporation committee. There is an upcoming contract for a part-time building manager at the complex. Can I be a building manager and remain on the committee?
• QUESTION: Why does our strata manager insist their role includes chairing the meeting, which is part of what they have been engaged to do? Isn’t this the role of the chairperson?
• QUESTION: Can the father of an owner be a committee member?
• QUESTION: In NSW, what is the minimum number of strata committee members required for a 14 lot strata scheme?
• QUESTION: Can the majority owner nominate themselves and their adult child to a position on the strata committee?
• QUESTION: At the AGM, can an owner nominate more than one person to the strata committee?
• QUESTION: What are the roles and their titles on an executive strata committee?
• QUESTION: Are roles related to the management of the complex like Fire Services Coordinator usually assigned to the elected members of the SC?
• QUESTION: As an over 55s strata, our “pool” of likely contenders for interest in being a committee member is shrinking as lot owners age. We do have a good Strata Manager. What happens in this situation?
• QUESTION: In NSW, can a person be a member of a strata committee if they have breached bylaws?
• INFOGRAPHIC: The Hierarchy of a Strata Scheme – Levels of Authority
• QUESTION: Although our committee is made up of 8 members, the position of Treasurer, Secretary and Chairperson are all held by the same person. Is there something in legislation to say this can be or can’t be done?
• QUESTION: Can a co-owner self nominate for the Strata Committee?
• QUESTION: Is it compulsory to have a strata committee under the NSW Act? Is it a breach of the act if there isn’t a strata committee working with the managing agent?
• QUESTION: A poll vote was called and our strata committee was chosen by way of unit entitlement, not by owners who wanted to be on the committee. Is this correct?
• QUESTION: Our secretary takes full control at meetings, will not let anyone make any comments or ask any questions. We all feel very bullied by this person. What can we do?
• QUESTION: Is the chairperson elected before each meeting?
• QUESTION: We are a complex of 7 units. We have a managing agent and the committee is made up of all lot owners. Do we need a Treasurer and Secretary?
• QUESTION: Can I resign from my positions of both Secretary and Treasurer of our owners corporation, effective immediately? What happens if no one wants to take my position?
• QUESTION: What is the procedure when the Secretary/Treasurer and Chairperson are about to resign and no others want to fill the position?
• QUESTION: Is there a provision in the NSW Legislation for the owners corporation chairman to live onsite?
• QUESTION: Can a husband and wife both hold positions on a strata committee?
• QUESTION: Who can be elected to a Strata committee and hold executive committee positions? Can this be someone who is not a lot owner?
• QUESTION: What do we do when we have a Strata executive committee resignation en masse from their positions? At least 3 members of our 4 person Executive Committee (including president & treasurer) are about to resign!
• QUESTION: Is it permissible for a tenant and a landlord of the same unit to hold positions on the executive committee?

Question: Our chair passed away. How quickly must we hold a meeting to elect a new chair? Can our secretary informally take over the position until the next AGM?

The chair of our strata committee passed away a few months ago. No meeting has been held to replace him, but the secretary has taken over as chair, pending a meeting to elect a new chair. The intended timing of this meeting will be the AGM in May 2025. No strata meetings will be held prior to this.

What are the implications of this decision?

Answer: The informal appointment may suffice. However, we recommend that for proper bookkeeping, all decisions be made formally.

The death of your chairperson gives rise to a vacancy in an office-bearing role and your strata committee must appoint a replacement by appointing a person who is a member of the strata committee (such as your secretary), or who is eligible to be a member of the strata committee, and that person appointed holds office until the next AGM.

While the prudent manner in which to appoint a replacement chairperson would be at a duly convened strata committee meeting, arguably, because there is no reference made to the requirement to pass a resolution to so appoint, the informal appointment may suffice. Although we recommend for proper bookkeeping all decisions be made more formally.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #723.

Question: A tie vote for numbers on the committee resulted in the exclusion of three willing members from contributing to their committee. Why can the owners corporation determine committee size?

Our strata consists of six owner-occupied townhouses. To set the number of committee members at our recent AGM, three owners voted to restrict the number to three, whilst the remaining three voted for six members.

A poll vote was called, resulting in the same outcome as lot entitlement. The strata manager called a tie vote, and the status quo of three remained.

The result excludes three willing owners from contributing to their strata committee.

Why does the legislation give the owners corporation power to determine the number of members on the committee?

Answer: Since the recent vote resulted in a tie and no new committee was elected, the current committee remains in place.

In this situation, the deadlock over the number of strata committee members arises from an evenly split vote—three owners advocating for a three-member committee and three supporting a six-member committee. According to Schedule 1, Clause 14 of the Strata Schemes Management Act 2015 (NSW) (the Act), a decision is made only when a majority of the votes cast are in favour. In the event of a tie, whether by simple majority or a poll vote, the motion does not pass. This legal framework ensures that decisions reflect the majority’s preference, maintaining fairness and order within the strata scheme.

Furthermore, Section 35(1)(d) of the Act specifies that existing committee members retain their positions until a new committee is elected at the next meeting. Since the recent vote resulted in a tie and no new committee was elected, the current committee remains in place. This provision is crucial as it guarantees that the owners corporation always has a functioning committee to manage day-to-day operations, thereby preventing any disruption in the governance of the strata scheme.

It is also important to recognise that those advocating for a six-member committee must ensure there are six willing candidates to fill those positions. Without six committed individuals stepping forward, maintaining a six-member committee becomes unfeasible.

Additionally, a professional chairperson plays a key role in facilitating these meetings. Before declaring the outcome of a vote, the chairperson should inform owners about the implications of a tied vote and offer an opportunity for owners to reconsider and potentially change their votes. This practice can help achieve a decisive outcome and ensure that all willing contributors have the chance to participate in the committee.

If the current impasse continues to hinder the participation of interested owners and the efficient management of the strata, it may be beneficial to seek mediation or consult with a strata law specialist. Addressing the underlying disagreements collaboratively can help find a sustainable solution that accommodates the interests of all owners and upholds the integrity of the strata management.

Tim Sara
Strata Choice
E: tsara@stratachoice.com.au
P: 1300 322 213

This post appears in the November 2024 edition of The NSW Strata Magazine.




Question: Can a building manager be on the committee or is this a conflict of interest?

Can a building manager/caretaker be on the strata committee? The legislation says no to managers and agents who lease short or long-term rentals “unless they are an owner”. Our building manager owners 50% of the lots he manages and is a committee member. This seems like a conflict of interest.

Answer: If your building manager/real estate leasing agent owns a lot in your scheme they are eligible for election to the strata committee.

If your building manager/real estate leasing agent owns a lot in your scheme they are not ineligible for election to the strata committee as per the section extracted below (emphasis added):

32 Persons who are not eligible to be appointed or elected to strata committee

1. The following persons are not eligible for appointment or election as a member of a strata committee, unless the person owns a lot in the strata scheme—
   
   1. the building manager for the strata scheme,
   2. a real estate agent carrying out functions in connection with the leasing of a lot in the strata scheme,
   3. a person who is connected with the original owner of the strata scheme or the building manager for the scheme, unless the person discloses that connection at the meeting at which the election is held and before the election is held or before the person is appointed as a member,
   4. any other person prescribed by the regulations for the purposes of this section.
2. An owner of a lot in a strata scheme who was an unfinancial owner at the date notice was given of the meeting at which the election of a strata committee is to be held and who did not pay the amounts owing by the owner before the meeting is not eligible for appointment or election to the strata committee.
3. A person who becomes ineligible for appointment or election to a strata committee after being appointed or elected to the strata committee must disclose that fact to the secretary or chairperson of the owners corporation as soon as possible after becoming aware of that fact.
4. A disclosure by a person under this section, other than a disclosure that is made at a meeting of an owners corporation or strata committee, is to be made by written notice given to the secretary or chairperson.
5. If the office of a member is vacated under section 35(1)(e), the person is not eligible for appointment or election as a member for the period of 12 months commencing on the day the resolution is passed.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in the November 2024 edition of The NSW Strata Magazine.




Question: If a strata committee member is overseas, can they appoint a replacement to attend the committee meeting? If not, can the absent member attend via video conferencing while other committee members attend in person? 

Answer: An “acting” member may be appointed in the absent committee member’s stead.

Yes. An “acting” member may be appointed in the absent committee member’s stead as per the extract of the Strata Schemes Management Act, 2015 (NSW) below with the consent of the strata committee.  Alternatively, yes, if the meeting is convened via teleconferencing, the absent member may participate by that means.

34  Acting members of strata committee

1. A member of a strata committee may, with the consent of the strata committee, appoint an owner or company nominee of a corporation that is an owner who is eligible to be a member to act in his or her place as a member at any meeting of the strata committee.
2. The owner or company nominee appointed is, while so acting as a member, taken to be a member.
3. An owner or company nominee of a corporation may be appointed whether or not he or she is already a member of the strata committee.
4. If a person so appointed is a member of the strata committee, the person may, at any meeting of the strata committee, separately vote in the person’s capacity as such a member and on behalf of the member in whose place the person has been appointed to act.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #712.

Question: What is the ideal number of members for an owners corporation committee, and why?

Answer: Five is the magic number.

The maximum number of committee members under the ACT is nine. I recommend an odd number because it avoids a tie vote or a deadlock. Generally, I think five is a good number, five to seven. If you have a higher number than that, it’s hard to get a quorum and hard to get a majority decision because you’re waiting on more decisions.

However, if there’s a lot to do, you want more hands on deck sharing the load, but ideally, five is the magic number.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in the August 2024 edition of The NSW Strata Magazine.

Question: Our chairperson resigned six months ago. Do we have an obligation to replace them?

Answer: The strata committee must fill the vacancy of an office bearer.

Yes. The strata committee must fill the vacancy of an office bearer. The person filling the vacancy must be a member of the strata committee or someone eligible to be a member of the strata committee.

If the vacancy is not an office bearer position, the decision to fill the vacancy is optional.

However, you may reassign the chair role to another member on the strata committee (which fills the vacant chair position) and keep a vacant position as an acting member of the committee.

We also note that any quorum will still be a majority of the total number determined at the Annual General Meeting. The number does not reduce because there is a vacancy. This will often determine if the strata committee should fill the vacancy of an acting member as well.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in the July 2024 edition of The NSW Strata Magazine.

Question: If the committee is elected at the AGM, but vacancies can be filled at other general meetings, can a GM amend the number of positions on a committee?

Answer: There are no restrictions to setting the number only at the AGM under the Act.

Generally, yes. This would be to fill vacancies as the number of strata committee members is a compulsory agenda item for an AGM where the number of members is voted on. Section 30(1) of the Strata Schemes Management Act 2015 says:

1. The strata committee of an owners corporation is to consist of the number of persons determined by the owners corporation (not being more than 9).

This section just says the owners corporation determines the number of strata committee members. There are no restrictions to setting the number only at the AGM under the Act. This means an owners corporation could resolve to change the member number at a later general meeting provided that if it meant there were more strata committee members than places, another election was held.

Allison Benson
Kerin Benson Lawyers
E: allison@kerinbensonlawyers.com.au
P: 02 4032 7990

This post appears in the May 2024 edition of The NSW Strata Magazine.

Question: Does an owner need to attend the AGM in person to be nominated to the strata committee or elected to the office of treasurer, secretary or chairperson?

Does an owner need to attend the AGM in person to be nominate to the strata committee or elected to the office of treasurer, secretary or chairperson?

Last year at our AGM, our strata manager advised that an owner was nominated to be on the committee and elected as chairperson. However, as they were not in attendance in person, they were not eligible to be chair. This has happened in the past treasurer, secretary and chair. The same owners continue to nominate each other for the offices yet are not always in attendance at the AGM.

Answer: A person may nominate to the strata committee and nominate for an office bearer’s positions in writing before the meeting.

This advice is totally incorrect. A person may nominate to the strata committee and nominate for an office bearer’s positions in writing before the meeting.

Most strata firms will have nomination forms, however, a simple email to the strata manager is suitable.

Section 41 of the SSMA 2015 states:

[Our emphasis]

1. The members of a strata committee must, at the first meeting of the strata committee after they assume office as members, appoint a chairperson, secretary and treasurer of the strata committee in accordance with this Act.

4. Nomination for election as an officer of the owners corporation may be made before or at the meeting at which the election is held.

Rod Smith
The Strata Collective
E: rsmith@thestratacollective.com.au
P: 02 9879 3547

This post appears in the May 2024 edition of The NSW Strata Magazine.

Question: Do the recent changes to the legislation mean that the mother can no longer sign over her proxy to the child?

In our strata scheme, a mother owns a lot, and the son resides in the unit. The mother does not reside in the building and gives her proxy to the son. He is a committee member. Do the recent changes to the legislation mean that the mother can no longer sign over her proxy to the child?

Matter [9] : Section 32 Persons who are not eligible to be appointed or elected to strata committee

Omit “to a strata committee or to act as members of a strata committee unless they are also the owners of lots in the strata scheme” from section 32(1).

Insert instead “as a member of a strata committee, unless the person owns a lot in the strata scheme”.

Answer: A strata committee member does not have to be a lot owner.

You need to consider the words in the context of the section. With the amendment to section 32, it now reads as follows:

32 Persons who are not eligible to be appointed or elected to strata committee

1. The following persons are not eligible for appointment or election as a member of a strata committee, unless the person owns a lot in the strata scheme—
   
   1. the building manager for the strata scheme,
   2. a real estate agent carrying out functions in connection with the leasing of a lot in the strata scheme,
   3. a person who is connected with the original owner of the strata scheme or the building manager for the scheme, unless the person discloses that connection at the meeting at which the election is held and before the election is held or before the person is appointed as a member,
   4. any other person prescribed by the regulations for the purposes of this section.
2. An owner of a lot in a strata scheme who was an unfinancial owner at the date notice was given of the meeting at which the election of a strata committee is to be held and who did not pay the amounts owing by the owner before the meeting is not eligible for appointment or election to the strata committee.
3. A person who becomes ineligible for appointment or election to a strata committee after being appointed or elected to the strata committee must disclose that fact to the secretary or chairperson of the owners corporation as soon as possible after becoming aware of that fact.
4. A disclosure by a person under this section, other than a disclosure that is made at a meeting of an owners corporation or strata committee, is to be made by written notice given to the secretary or chairperson.
5. If the office of a member is vacated under section 35(1)(e), the person is not eligible for appointment or election as a member for the period of 12 months commencing on the day the resolution is passed.

Section 32 deals with people not eligible for appointment to the strata committee. If the lot owner’s son is the building manager or a real estate agent who carries out leasing functions of the lot or lots in the scheme, they are not eligible for appointment to the strata committee. To put it another way, a strata committee member does not have to be a lot owner. A lot owner’s proxy could nominate themselves for the strata committee, provided their proxy authorises them to do this.

Allison Benson
Kerin Benson Lawyers
E: allison@kerinbensonlawyers.com.au
P: 02 4032 7990

This post appears in the April 2024 edition of The NSW Strata Magazine.

Question: I am an owner and also on our complex’s owners corporation committee. There is an upcoming contract for a part-time building manager at the complex. Can I be a building manager and remain on the committee?

Answer: Yes.

Yes, while you are an owner, you may remain a member of the strata committee and be the building manager for the strata scheme. However, as a strata committee member, you must disclose your pecuniary interest to the strata committee.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #684.

Question: Why does our strata manager insist their role includes chairing the meeting, which is part of what they have been engaged to do? Isn’t this the role of the chairperson?

As chairperson of our committee, I’d like to clarify my role.

Schedule 2, Part 3, Clause 8 states that the chairperson of the owners corporation is to preside at any meeting where the chairperson is present. If the chairperson is away, the committee must elect someone from the committee to chair the meeting, which also means that the person elected must be entitled to vote.

Why does our strata manager insist their role includes chairing the meeting and this is part of what they have been engaged to do?

If I let the strata manager chair the meeting, I am not fulfilling my (basically) only duty. Are they contravening the Strata Schemes Management Act 2015 as she is not a committee member and not entitled to vote?

Some appointed chairpersons may not be willing to perform that duty, but why have a chairperson at all if that is the case? What’s the point of the Management Act if strata managers override the obligations of the chairperson?

Answer: If the chairperson wants to chair the meeting, they are entitled to do so.

You are correct in your email. If the chairperson wants to chair the meeting, they are entitled to do so.

The strata committee can also elect a member of the strata committee to chair the meeting if the chairperson is not present.

The strata managing agent is often delegated the function of chairing the meeting under their delegations outlined in the Strata Management Agency Agreement. This doesn’t override the role of the chairperson.

Rod Smith
The Strata Collective
E: rsmith@thestratacollective.com.au
P: 02 9879 3547

This post appears in the September 2023 edition of The NSW Strata Magazine.

Question: Can the father of an owner be a committee member?

Answer: Provided the owner nominates their non-owner father and the owner is not a member or is not seeking election to the strata committee, then the father is eligible to be elected.

Yes, due to the operation of Section 31 of the Strata Schemes Management Act, 2015 (NSW) extracted below for your ease of reference (emphasis added):

Provided the owner son/daughter nominates their non-owner father and the owner son/daughter is not a member or is not seeking election to the strata committee, then the father is eligible to be elected.

31 Persons who are eligible to be appointed or elected to strata committee

1. The following persons are eligible for appointment or election to the strata committee of an owners corporation—
   
   1. an individual who is a sole owner of a lot in the strata scheme,
   2. a company nominee of a corporation that is a sole owner of a lot in the strata scheme,
   3. an individual who is a co-owner of a lot or a company nominee of a corporation that is a co-owner of a lot in the strata scheme, if the person is nominated for election by an owner who is not a co-owner of the lot or by a co-owner of the lot who is not a candidate for election as a member,
   4. an individual who is not an owner of a lot in the strata scheme, if the person is nominated for election by an owner of a lot who is not a member, or is not seeking election as a member, of the strata committee.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #657.

Question: In NSW, what is the minimum number of strata committee members required for a 14 lot strata scheme?

In NSW, is there a minimum number of strata committee members required? I live in a block of 14 units. Five lots are owner-occupied. I have been a committee member for eight years. For the last four years, there have been two of us on the committee. At our recent AGM, the other person decided not to continue. Our strata manager says one committee member in a small block is acceptable. Is this correct?

Answer: Your strata manager is correct.

Your strata manager is correct. Because you are not a “large” scheme or a “2 lot” scheme, there is no prescribed minimum for the number of committee members.

For more about the different requirements for two lots, three – 100 lots, and over 101 lot schemes, refer to this post: Size does matter by Allison Benson, Kerin Benson Lawyers.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #655.

Question: Can the majority owner nominate themselves and their adult child to a position on the strata committee?

In our strata of eight lots, one owner owns 5 lots, the remaining three lots are owned by three unrelated owners.

Can the majority owner nominate themselves and their adult daughter (who is not an owner) to a position on the strata committee?

Answer: A person who is an owner of more than one lot in the strata scheme may nominate one person for election as a member of the strata committee for each lot for which the person is an owner.

The legislation is clear:

“A person who is an owner of more than one lot in the strata scheme may nominate one person for election as a member of the strata committee for each lot for which the person is an owner”.

But, the non-owner (adult daughter) must be nominated for election by an owner of a lot who is not a member or is not seeking election as a member of the strata committee.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #628.

Question: At the AGM, can an owner nominate more than one person to the strata committee?

Answer: One nomination per lot.

Each owner is limited to one nomination for each lot that they own.

Below is a chart on who can nominate to the Strata Committee

Strata Committee Nominations – WHO CAN NOMINATE

Click here to download the flowchart

Further below is a chart on who is eligible and not eligible for election to the strata committee.

Strata Committee Nominations – WHO IS ELIGIBLE & WHO IS NOT ELIGIBLE

Click here to download the flowchart

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in the December 2022 edition of The NSW Strata Magazine.

Question: What are the roles and their titles on an executive strata committee?

What are the minimum and maximum roles and their titles on an executive committee (strata committee).

As I understand it there is a:

• Chair
• Secretary
• Treasurer

I would like to be a member of the executive committee, however, other lot owners have already volunteered for the Chair, Secretary and Treasurer in our block. As an owner, what other roles are there in the executive committee?

Answer: There are only 3 “offices” in a strata committee: Chairperson, Secretary and Treasurer. Any other persons on the strata committee who are not “officers” are “members” of the strata committee.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #612.

Question: Are roles related to the management of the complex like Fire Services Coordinator usually assigned to the elected members of the SC?

At our first Strata Committee (SC) meeting following the AGM where members of the SC were nominated and appointed to the SC, the husband of one of the SC members was given an official committee position of responsibility, Fire Services Coordinator.

Are roles related to the management of the complex usually assigned to the elected members of the SC or can the SC appoint someone they choose to key positions of responsibility for the management of the complex regardless of whether they are an elected member of the SC or not?

Answer: Fire Services Coordinator is not a role recognised by the strata legislation or an official committee position.

Fire Services Coordinator/the person to whom you refer is not a role recognised by the strata legislation or an official committee position, though various persons may assist the Owners Corporation. For examples, see excerpts below.

Without knowing the responsibilities of the role, whether this person is paid or qualified or is controlled by/reports to the strata committee, it is difficult to determine whether there is a breach of the legislation.

Strata Schemes Management Act 2015 – Sect 11

11 Other management bodies and persons who assist the owners corporation

The owners corporation for a strata scheme may be assisted in the carrying out of its management functions under this Act by any one or more of the following–

1. the strata committee of the owners corporation established in accordance with this Act,
2. a strata managing agent for the scheme appointed in accordance with Part 4,
3. a building manager for the scheme appointed in accordance with Part 4.

Strata Schemes Management Act 2015 – Sect 12

12 Owners corporation may employ persons to assist in exercise of functions

1. The owners corporation for a strata scheme may employ such persons as it thinks fit to assist it in the exercise of any of its functions.
2. The owners corporation must ensure that any person employed to assist it in the exercise of a function has the qualifications (if any) required by this Act or any other law for the exercise of that function.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #597.

Question: As an over 55s strata, our “pool” of likely contenders for interest in being a committee member is shrinking as lot owners age. We do have a good Strata Manager. What happens in this situation?

Our NSW over 55s Strata is due to have its AGM next month. At this stage, none of the current committee members are willing to stand again. We have all been on the committee for many years now. It is looking highly unlikely that any other lot owners will be willing to go on the Committee.

Our “pool” of likely contenders for interest in being a committee member is shrinking as the lot owners age. We do have a good Strata Manager. What happens in this situation?

Answer: The strata managing agent may be delegated the functions of the office-bearers.

Section 29 of the Strata Schemes Management Act, 2015 (NSW) provides:

29 Owners corporation to appoint strata committee

1. An owners corporation must appoint a strata committee of the owners corporation in accordance with this Act.
2. The owners corporation may appoint the strata committee before the first annual general meeting of the owners corporation.
3. The members of the strata committee must be elected at the first annual general meeting of the owners corporation whether or not members were appointed before that meeting.
4. If there is no strata committee of an owners corporation, the strata scheme must be administered by the owners corporation, but nothing in this subsection prevents a strata managing agent appointed under this Act from exercising any functions conferred on the agent.

So, in your situation, pursuant to sub-clause (4) the strata scheme is administered by the Owners Corporation and the strata managing agent may be delegated the functions of the office-bearers.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in the August 2022 edition of The NSW Strata Magazine.

Question: In NSW, can a person be a member of a strata committee if they have breached bylaws?

Answer: Breaching by-laws does not disentitle committee membership.

Andrew Terrell
Bright & Duggan
E: Andrew.Terrell@bright-duggan.com.au
P: 02 9902 7100

This post appears in Strata News #584.

The Hierarchy of a Strata Scheme – Levels of Authority

At a recent webinar, Leanne Habib mentioned the levels of authority in a strata scheme. We were asked if a handout could be created illustrating the hierarchy. Premium Strata created this downloadable inforgraphic to explain the relationship in a strata scheme between the strata committee, strata manager, building manager and contractors/suppliers.

You can download you copy of the infographic here: The Hierarchy of a Strata Scheme – Levels of Authority

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #582.

Question: Although our committee is made up of 8 members, the position of Treasurer, Secretary and Chairperson are all held by the same person. Is there something in legislation to say this can be or can’t be done?

Answer: This scenario is contemplated by the strata legislation.

This scenario is contemplated by the strata legislation.

The relevant section, section 41, is set out below (emphasis added):

41 Strata committee to appoint officers

1. The members of a strata committee must, at the first meeting of the strata committee after they assume office as members, appoint a chairperson, secretary and treasurer of the strata committee in accordance with this Act.
2. The chairperson, secretary and treasurer of the strata committee are also, respectively, the chairperson, secretary and treasurer of the owners corporation.
3. A person may be appointed to one or more of the offices of chairperson, secretary and treasurer.
4. Nomination for election as an officer of the owners corporation may be made before or at the meeting at which the election is held.
5. The regulations may provide for the procedures for nomination of officers of the strata committee.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #553.

Question: Can a co-owner self nominate for the Strata Committee?

Answer: Each lot can nominate one person as a candidate for the strata committee.

For context, section 31(1)(c) of the Strata Schemes Management Act states:

Persons who are eligible to be appointed or elected to strata committee

“The following persons are eligible for appointment or election to the strata committee of an owners corporation … an individual who is a co-owner of a lot or a company nominee of a corporation that is a co-owner of a lot in the strata scheme, if the person is nominated for election by an owner who is not a co-owner of the lot or by a co-owner of the lot who is not a candidate for election as a member.”

Subsections (4) and (5) then go on to state:

(4) Only one co-owner (including a company nominee of a co-owner) of the same lot may be a member of a strata committee at the same time, except as provided by subsection (5).

(5) A person who is an owner of more than one lot in the strata scheme may nominate one person for election as a member of the strata committee for each lot for which the person is an owner.

When all of this is put together, another way to explain it is that each lot can nominate one person as a candidate for the strata committee. For example if someone owns one lot, they can nominate one candidate for that lot. If someone owns two lots, they can nominate two candidates (one for each lot).

In other words, it is the lot that can nominate candidates not the people. For example, if there are three co-owners of one lot, they can’t nominate three people. They can only nominate one.

However, a co-owner of a lot could be nominated if:

1. The co-owners own more than one lot nominate them. For example, there three co-owners that own three lots – they can nominate one co-owner per lot, but if there are three co-owners who own two lots, they can only nominate two of the three co-owners.
2. The co-owners only own one lot and nominate one of the co-owners, and then the owner of another lot nominates the other co-owner.

Tim Sara
Strata Choice
E: tsara@stratachoice.com.au
P: 1300 322 213

This post appears in Strata News #542.

Question: Is it compulsory to have a strata committee under the NSW Act? Is it a breach of the act if there isn’t a strata committee working with the managing agent?

I’m an owner of a complex of seven townhouses. Currently, we have five committee members. We’re going to have our AGM next month with the managing agent. I’ve read the agenda and motions put forward by a few owners for discussion at the meetings.

The main concern is that a couple of the motions have suggested that we don’t have a strata committee and have suggested that each owner is to liaise with the managing agent as an independent responsibility.

I’m a bit confused about part three, Division One, section 29(4). Is it compulsory to have a strata committee under the Act? And is it a breach of the act if there isn’t a strata committee with the inclusion of the managing agent?

Answer: Each Owners Corporation is required to appoint a strata committee at each Annual General Meeting.

Under Section 29 part One of the Strata Schemes Management Act 2015 it states that an Owners Corporation must appoint a strata committee of the Owners Corporation in accordance with the act. Each Owners Corporation is required to appoint a strata committee at each Annual General Meeting. So, you’re absolutely right.

However, I will note 29(4) which says that if there is no strata committee of an Owners Corporation, the strata scheme must be administered by the Owners Corporation. But nothing in this subsection prevents a strata managing agent appointed under the act from exercising any other functions conferred on the agent. What that means is that you must appoint a strata committee. However, they’ve also provided a sister section to that, which basically says that if there isn’t one, the strata managing agent can continue to action and act under the functions of their agreement. However, decisions can then be taken back to the Owners Corporation for decision at a general meeting.

My advice to the Owners Corporation would be to appoint a strata committee. All of our buildings in our portfolio have strata committees. However, if the building goes the way, which it seems to indicate from this question where they won’t have a strata committee elected at the AGM, then they can continue to function via the strata manager and taking major decisions at General Meetings of the Owners Corporation.

So I think you’re on the right track. The Act says they must appoint one but if they don’t, then this is what happens.

Rod Smith
The Strata Collective
E: rsmith@thestratacollective.com.au
P: 02 9879 3547

This post appears in Strata News #525.

Question: A poll vote was called and our strata committee was chosen by way of unit entitlement, not by owners who wanted to be on the committee. Is this correct?

We’ve just had our AGM. For the first time in our Owners Corporation’s history, a poll vote was called and our strata committee was chosen by way of unit entitlement, not by owners who wanted to be on the committee. I had been a serving member of our Owners Corporation since moving in 9 years ago.

Firstly, is this legal?

Secondly, can anything be done as members of our OC are very upset. Many had served on our committee for years?

Answer: If the number of candidates is greater than the number decided (e.g. there are four candidates but only three positions), then a ballot is required.

The procedure for the election of the strata committee is set out within clause 9 of the Strata Schemes Management Regulations 2016 (NSW) (‘the Regulations’).

In summary:

1. The chairperson announces the names of candidates nominated by owners in writing before the meeting.
2. The chairperson calls for any oral nominations, from those present, of further candidates eligible for election.
3. After the chairperson declares nominations have closed, the owners corporation decides the number of positions available on the strata committee (with a number being proposed, then a vote being taken by ordinary resolution to decide on the number). For example, a person entitled to vote might propose the number be three, and then a vote is taken on that number.

If the number of candidates was equal to or less than the number of positions (e.g. there are four candidates and the ordinary resolution decides there should be four positions), then those candidates are duly elected as the strata committee without the need for a ballot.

If the number of candidates is greater than the number decided (e.g. there are four candidates but only three positions), then a ballot is required. At this stage, the chairperson might invite the candidates to consider withdrawing their nomination to avoid the need for a ballot.

If a ballot is required, the procedure is set out within clause 10 of the Regulations.

In summary:

1. The chairperson must announce the name of each candidate.
2. The chairperson must provide each person present and entitled to vote with a blank ballot paper.
3. The ballot must be signed by the voter and have their writing on it, including:

   1. The names of the candidates (without repeating a name) they wish to vote for. They can only vote for up to the number of positions available (e.g. if there are four candidates and three positions, they can only vote for up to three of the candidates).
   2. The capacity in which they are voting (e.g. as an owner, proxy, company nominee, first mortgagee or covenant charge) and if they are voting as a proxy, they must include the name and capacity (e.g. owner, company nominee etc.) of the person who gave them their proxy.
4. The ballot papers are returned to the chairperson, and votes are tallied for each candidate, usually with the assistance of a scrutineer.
5. The candidates with the most votes are elected until all positions are filled (e.g. if there are three positions, the candidates with the three highest vote counts are elected).
6. If there is one place left, but there are two or more candidates with equal votes, the chairperson will call for a show of hands by those present and entitled to vote, and the candidate with the most votes is elected to fill the final positions.

Lastly, under Schedule 1, clause 14(3) of the Strata Schemes Management Act 2015 (NSW), a poll vote can be demanded by any persons present and entitled to vote on a motion (whereby the outcome is decided based on units of entitlement and not votes per lot). This rule extends to the motion to elect the strata committee. However, it should be noted that a poll vote is only necessary if one is demanded. If it is not demanded, then votes are counted simply on the basis of one vote per lot.

Tim Sara
Strata Choice
E: tsara@stratachoice.com.au
P: 1300 322 213

This post appears in Strata News #521.

Question: Our secretary takes full control at meetings, will not let anyone make any comments or ask any questions. We all feel very bullied by this person. What can we do?

At our monthly Owners Corporation meetings, although the whole committee including the chairperson attended, the meeting was run by our overbearing secretary. We have been told that the secretary runs the meetings because the Chairperson is inexperienced.

The secretary takes full control, will not let anyone make any comments or ask any questions. We all feel very bullied by this person. What can we do?

Answer: It’s not for the Secretary to fulfil the role of the chairperson.

I always say there’s one in every scheme. Generally, there’s one lot owner that is very passionate and likes to take control.

My view is a very black and white view: The Secretary has their role and the chairperson has their role. It’s not for the Secretary to fulfil the role of the chairperson.

The chairperson at any meeting has first right to chair the meeting and must, if they preside at the meeting. It’s not even optional. The Act states that if the chairperson presides at the meeting, they must chair the meeting. If the chairperson is not present at the meeting, then the majority of members need to nominate another member to chair the meeting. It’s not even for the Secretary to step in as a backup.

Unless you had a delegated chairperson, which could generally be the Strata Managing agent. If they’re at the meeting then as delegated chairperson, they would step in to chair the meeting. If both the appointed chairperson and the delegated chairperson were not present at the meeting, the members would need to nominate a chairperson if it was a committee meeting. It was a general meeting, the owners being the majority would nominate a chairperson.

My advice is that the Secretary should be reminded of their role. That’s outlined under Section 43 of the Act, section 42 of the strata schemes Management Act sets out the functions of the chairperson, and the main function is to chair a meeting. My view would be that it is irrelevant if the chairperson is incompetent, not capable, it is their role, and until they reappointed with another office position, they are to take that position as chairperson.

The majority of the committee members should be saying e.g. “No, Nikki’s the chairperson. Nikki should be chairing this meeting”. I think it’s taking that strong stance that everyone should fulfil their role and as Secretary, you have a role to fulfil, but as chairperson, they equally have a role to fulfil.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #500.

Question: Is the chairperson elected before each meeting?

Answer: If you haven’t elected a chairperson, secretary and treasurer, to remain in office for the term of their appointment, you can elect a chairperson for each meeting.

At a general meeting, you elect your strata committee, but you don’t elect the office bearers position. This is done at a committee meeting. Generally, at your first committee meeting, immediately after the annual general meeting or shortly after, you would elected office bearers. If you’ve elected office bearers, they would hold those positions until they are removed from the position.

If you haven’t elected a chairperson, secretary and treasurer, to remain in office for the term of their appointment, which is generally up until the next Annual General Meeting, then you can elect a chairperson for each meeting. It’s highly recommended that you elect these office bearer’s positions to remain in place up until the next election being at your next annual general meeting. I think it’s important to have office bearers positions. Even though you have a managing agent in most cases, there are still schemes that are self managed.

When you have a managing agent that is appointed, you still need to have members of your committee, have those functions and duties in case you need to do something where you don’t require your managing agent. Or in fact, you might be wanting to terminate the services of the managing agent. So I think it’s critical that as office bearers, you hold those positions as well so that you can be independent in calling a meeting if you need to, issuing correspondence to owners if you need to. I think it’s critical. That’s why at all our annual general meetings, we ensure, immediately after an AGM, we elected office bearers out of committee.

I’d highly recommend that you do elect office bearers positions, to be for the term of their appointment, by election as opposed to randomly at each meeting when it’s held.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #493.

Question: We are a complex of 7 units. We have a managing agent and the committee is made up of all lot owners. Do we need a Treasurer and Secretary?

Answer: It is therefore important that the owners corporation appoint office bearers

Under section 41(1) of the Strata Schemes Management Act 2015 (NSW) “the members of a strata committee must, at the first meeting of the strata committee after they assume office as members, appoint a chairperson, secretary and treasurer of the strata committee in accordance with this Act”. The keyword here is “must”.

When appointing a strata managing agent, a lot of Owners Corporations will delegate powers and duties to the strata managing agent in accordance with Part 4 of the Act.

Under section 54 of the Act an Owners Corporation can delegate some or all of the office bearers’ (secretary, treasurer, chairperson) functions to the strata managing agent.

However:

1. This does not remove the obligation to appoint office bearers in the first place.
2. The agency agreement with the strata managing agent may not cover all of the office bearers duties.
3. There may be circumstances in which the owners corporation does not want its managing agent to act as an office bearer (for example, arranging a meeting to terminate their services, which requires a secretary to prepare the agenda and a chairperson to chair the meeting).
4. There may be circumstances when the managing agent chooses not to exercise their delegated authority (for example, payment of very significant invoices).
5. Not having elected office bearers can point to dysfunction of an owners corporation (which can be used when seeking orders for the compulsory appointment of a strata managing agent in accordance with section 237 of the Act).

It is therefore important that the owners corporation appoint office bearers, even if it does choose to delegate its functions to the strata managing agent.

Tim Sara
Strata Choice
E: tsara@stratachoice.com.au
P: 1300 322 213

This post appears in the July 2021 edition of The NSW Strata Magazine.

Question: Can I resign from my positions of both Secretary and Treasurer of our owners corporation, effective immediately? What happens if no one wants to take my position?

I am both Secretary and Treasure in our block of 4 units. Due to ongoing conflicts with a difficult owner, can I resign from my positions effective immediately?

There are adult children who live with their lot owner parents in our complex. Can these children be voted onto the committee? What happens if no one wants to take my positions?

Answer: A strata committee member can resign by giving written notice to the owners corporation.

A strata committee member can resign by giving written notice to the owners corporation (usually by email or letter to the secretary or strata manager if one is delegated the function of secretary) in accordance with section 35(c) of the Strata Schemes Management Act 2015 (NSW) (‘the Act’). The resignation can either be from an office bearers position (secretary, treasurer or chairperson) where you will remain on the committee just as a committee member or the resignation can be from the committee member position entirely (and therefore, from any office bearers roles you may have).

When a committee member resigns, there is a vacant position left on the strata committee (as well as any office bearers roles they may have resigned from).

Best practice would be that the strata committee (or strata manager) would then write to the owners to call for written nominations within a period of time (say 2-4 weeks) and then hold a meeting with a motion to elect a new member to fill the vacancy (and another motion to elect new office bearers if there are any vacancies) in accordance with section 35(2) of the Act for committee members, and/or section 45(2) of the Act for office bearers.

However, it is important to note that:

1. There is no strict legal requirement to immediately elect a new strata committee member as section 35(2) states that the strata committee “may” appoint a new member. However, section 45(2) of the Act suggests that the strata committee needs to appoint new office bearers in order to function properly.
2. The election is not required to be done at a general meeting (as opposed to the original election of committee members which is normally done at an annual general meeting) and can be done at a strata committee meeting.
3. The new strata committee member and/or office bearer fills the vacancy until the next election of a new strata committee.
4. Nominations for new committee members must come from an owner or person entitled to vote at a general meeting (in accordance with Schedule 1, clause 5 of the Act).

If no one nominates to fill the vacancy, then the committee will operate with a vacant position (similar to a committee member not attending a strata committee meeting) and it can therefore be difficult to reach a quorum and make decisions much like when you have a non-responsive committee member.

Tim Sara
Strata Choice
E: tsara@stratachoice.com.au
P: 1300 322 213

This post appears in Strata News #476.

Question: What is the procedure when the Secretary/Treasurer and Chairperson are about to resign and no others want to fill the position?

What is the procedure when the Secretary/Treasurer and Chairperson are about to resign and no others want to replace their role due to current conflict between owners/other committee members? What happens as to arranging upcoming AGMs etc?  

Answer: Generally speaking, there are a number of functions of an owners corporation that can only be managed by a strata committee or by a strata managing agent.

I assume from your question that your strata plan is self-managed and you do not engage a strata manager to manage the affairs of the building.

Generally speaking, there are a number of functions of an owners corporation that can only be managed by a strata committee or by a strata managing agent. Conduct of meetings, levying of contributions, banking and insurance are among those functions. If you cannot form a new committee or the other owners in the building do not feel they possess the skills to fulfil the functions of the strata committee, you will need to consider hiring a strata manager.

Clearly, this is an additional cost but it might be necessary in your circumstances. It may also make sense to engage a strata manager if there has been ongoing issues between owners. A good strata manager can also assist in helping with these tensions.

Michael Ferrier
Eyeon Property Inspections
E: michael.ferrier@eyeon.com.au
P: 02 9260 5510

This post appears in the February 2021 edition of The NSW Strata Magazine.

Question: Is there a provision in the NSW Legislation for the owners corporation chairman to live onsite?

Answer: No there isn’t!

Andrew Terrell
Bright & Duggan
E: Andrew.Terrell@bright-duggan.com.au

Question: Can a husband and wife both hold positions on a strata committee?

Answer: Provided the rules on nominations were strictly observed at the time of their appointment, there is no restriction on a husband and wife both being on the strata committee.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #403.

Question: Who can be elected to a Strata committee and hold executive committee positions? Can this be someone who is not a lot owner?

Can a resident who is not listed as the unit owner on the title deeds, but who has that lot owner’s long term proxy (e.g. a lot owner’s spouse or de facto partner) be elected to a Strata committee? Then if so, can that individual hold one of the executive committee positions?

Answer: It is very common for residents of a lot that are not owners to be members of the Strata Committee.

It is very common for residents of a lot that are not owners to be members of the Strata Committee. The main reason for this is usually where the apartment is held in a spouses / partners name.

There are two ways that a person can be nominated to the Strata Committee:

1. In Writing
2. At the AGM

This is outlined in Section 9 of the Strata Schemes Management Regulations 2016 and Clause 5 of Schedule 1 of the Strata Schemes Management Act 2015.

The key aspect of the Strata Committee election is the validity of the person(s) / entity nominating rather than the person being nominated. The nomination process is outlined in Section 31 of the Strata Schemes Management Act 2015 (SSMA 2015) and this section advises that the following persons are able to be nominated to the Strata Committee:

1. an individual who is a sole owner of a lot in the strata scheme,
2. a company nominee of a corporation that is a sole owner of a lot in the strata scheme,
3. an individual who is a co-owner of a lot or a company nominee of a corporation that is a co-owner of a lot in the strata scheme, if the person is nominated for election by an owner who is not a co-owner of the lot or by a co-owner of the lot who is not a candidate for election as a member,
4. an individual who is not an owner of a lot in the strata scheme, if the person is nominated for election by an owner of a lot who is not a member, or is not seeking election as a member, of the strata committee.

The situation you describe is outlined in 31(d) above.

I am making an assumption in my response that:

1. ‘By long term proxy’, the co-owner provides a valid proxy form prior to each AGM (or uses a proxy that is still valid from the previous AGM)
2. The non-owner is being correctly nominated by an owner as described above and as set out in the above sections of legislation.

I hope this helps, this is quite a difficult section of the legislation.

Rod Smith
The Strata Collective
E: rsmith@thestratacollective.com.au
T: 02 9879 3547

This article is for reference purposes only and is not intended to be a comprehensive review of the developments in the law and practice or to cover all aspect of the subject matter. It does not constitute legal or other advice and should not be relied upon this way. Readers should take legal or other advice before applying the information containing in this publication.

This post appears in Strata News #169.

Question: What do we do when we have a Strata executive committee resignation en masse from their positions? At least 3 members of our 4 person Executive Committee (including president & treasurer) are about to resign!

I am sure a mass Strata executive committee resignation has happened somewhere before. I have been discreetly informed that at least 3 members of our 4 person Executive Committee (including president & treasurer) are about to resign from holding their positions! This is only a couple of months into their anticipated one year term.

This situation has arisen because of the Executive Committee’s inability to accommodate requests from residents to have certain matters reviewed and put to a vote. There are as expected personalities involved, half the Executive Committee have exaggerated opinions of their role as elected dictators of our strata community. Therefore simple requests are ruled out of order based on any excuses they can muster.

Anyway, it has (as anticipated come to a head) one belligerent & obstructive individual is trying to retain their 10 year control, and there is much ill feeling within the Executive Committee and disruption among the bewildered few who are not members of the Executive Committee and eager to make progress on behalf of the community at large.

When each Strata executive committee resignation is tabled (possibly within 48 hours), what happens next to ensure things return to an even keel and move forward?

Update: As anticipated resignations are flowing fast, Secretary and Treasurer have resigned from their positions this morning. I have so far managed to get our President (and our fourth member) to put their letters of resignation on hold. This may not last the day?

A committee meeting announced yesterday and (scheduled for tomorrow), has just been cancelled.

We need to appoint new people quickly to put our strata back on course!

As of an hour or so ago, all we have left is a President!

She is also unclear as what should now be her first step to recruit some fresh new members.

Answer: If your entire strata committee resigns, you may make an application to NCAT for the Tribunal to order that a person convene a general meeting of the Owners Corporation.

Basically, if your entire strata committee resigns from their positions, you may make an application to NCAT under Section 48 Strata Schemes Management Act, 2015, for the Tribunal to order that a person convene a general meeting of the Owners Corporation.

Generally, the vacancies would be filled under Sections 35 & 45 of the SSMA but as there is no strata committee to fill the vacancies, this would not be an option for you.

Also, as the scheme is clearly dysfunctional, you may make an application to NCAT for the compulsory appointment of a strata managing agent. In this instance, there would be no strata committee or Owners Corporation’s meetings and only the compulsorily appointed agent would make all decisions by itself for the usual period of 12 months (but up to 24 months).

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This post appears in Strata News #167.

Question: Is it permissible for a tenant and a landlord of the same unit to hold positions on the executive committee?

In our strata, there was a proposal put to the executive committee. The tenant and owner of the same unit want to hold positions of chairman and secretary of the executive committee.

Is this permissible and/or advisable? If so, does the appointment need to be formally voted on at an executive committee meeting?

Answer: No this is not permissible. Only one of them can seek nomination.

No this is not permissible. The tenant (non-owner) can only be nominated by an owner who is not seeking election. Only one of them, either the tenant or the landlord, can seek the nomination for a position on the executive committee.

This post appears in Strata News #134.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

Have a question or something to add to the article? Leave a comment below.

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