Committees- a recap on the legal technicalities associated with committee elections and membership
Section 100 of the Owners Corporations Act 2006 requires any Owners Corporation with 10 or more lots to elect a committee at each annual general meeting.
Any lot owner or a proxy is eligible to be on the committee unless at the time of the vote they are not financial.
If a committee member becomes unfinancial after being elected then the member is automatically suspended from the committee and their vote does not count whilst they are in arrears.
Subject to their financial status, a committee member remains a committee member until:
- The member resigns in which case the committee can, under section 104, either co-opt any other lot owner or proxy as a member to fill the casual vacancy or, if there remains at least 3 members, proceed without filling the vacancy;
- They are removed at a special general meeting under section 103;
- Replaced at an annual general meeting;
- Removed in accordance with regulation 9 (explained below).
Regulation 9 of the Owners Corporations Regulations 2018 provides that if a member of a committee is absent from 25 per cent or more of committee meetings held within any period of 6 months without having given prior notice of, or reasonable explanation for, the member’s absence to the committee, the committee may resolve that, despite section 103(5) of the Act, the member ceases to hold office as a committee member. If a member ceases to hold office because of a resolution under this regulation, a casual vacancy will occur which may be dealt with in accordance with section 104 of the Act.
So how does the election work?
Ideally elections should be held in the following manner:
- The Owners Corporation should decide how many committee members it will have. No vote is required to have between 3 and 7 members. A vote is required to have between 8 and 12 members. Ideally, you have a vote to determine the maximum number of members even if less than 7.
- Each nominee should be given an opportunity to tell lot owners why they should be elected.
- The nominees for election should be called for and a vote taken in respect to each candidate.
- If there are more candidates than positions then the candidates with the highest vote will be elected up to the number of committee members the OC has voted to have (or if not vote up to 7).
- A candidate must have at least a simple majority of votes cast at the meeting to be elected. Any candidate who gets less than 50.01% of the votes is not elected.
Some misconceptions
If a new committee is elected at an annual general meeting but the resolutions are interim resolutions because there was not a quorum, the old committee remain the valid committee until the resolutions become final.
There is no such thing as a caretaker committee and no restriction on the outgoing committee from taking any action it deems subject to its delegation of powers and its statutory duties under section 117 of the Owners Corporations Act 2006.
Each nominee candidate must have a separate election vote.
When you have multiple Owners Corporations in a development each Owners Corporation must vote in its own committee. You cannot have the committee for OC1 being the committee for OC2, OC3 and OC4. A committee member must be a lot owner or proxy for a lot owner who is a member of the relevant Owners Corporation. It is rare that a lot will be a member of every Owners Corporation in a development.
Need assistance?
For expert assistance and advice about committees, holding AGMs and SGMs or having someone attend to give legal advice during the meeting contact Phillip Leaman, head of our Owners Corporations team at Tisher Liner FC Law.