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NSW: Q&A Positions on the Strata Committee

The LookUpStrata Team
NSW committee

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

Table of Contents:

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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: If the “committee member” motion is defeated at the AGM, are we left without a strata committee?

The motion on the AGM regarding “committee members” outlines the current committee members and numbers.

If this motion is DEFEATED at the next AGM, will the owners corporation be left without a strata committee?

Would the owners corporation then be required to call for nominations and hold an election?

What is the process, and can it be done at an EGM?

Can an election be held via paper or electronic vote? And if so, what time period would this need to occur in?

Answer: No, because if the motion fails at the AGM, you could call for nominations and hold a general meeting to appoint a new committee.

Technically, the current committee members hold office, and those positions are not vacated until the next meeting at which the owners corporation elects a new strata committee – see Section 35 of the Strata Schemes Management Act 2015 (NSW) extracted below (our emphasis added):

35 Vacation of office of elected member of strata committee

  1. An elected member of a strata committee vacates office as a member—

    1. if the person was eligible to be a member at the time of election and the person ceases to be so eligible (other than because the person is an unfinancial owner), or

    2. if the person was not an owner at the time of election or was a company nominee and the individual who nominated the person for election or the corporation for which the person is a company nominee ceases to be an owner or gives written notice to the owners corporation that the person’s office is vacated, or

    3. on the receipt by the owners corporation from the person of notice in writing of the person’s resignation as a member, or

    4. at the end of the next meeting at which a new strata committee is elected by the owners corporation, or

    5. if the owners corporation, in accordance with a special resolution, determines that the person’s office as a member is vacated, or

    6. if the person dies.

  2. A strata committee may appoint a person eligible for election as a member to fill a vacancy in the office of a member of the strata committee, other than a vacancy arising under subsection (1) (d) or a vacancy in the office of an officer of the owners corporation. Any person so appointed holds office, subject to this section, for the balance of his or her predecessor’s term of office.

If the motion fails at the AGM, you could call for nominations and hold a general meeting to appoint a new committee.

For elections, a meeting held wholly by pre-meeting electronic paper vote is not permitted, though voting by electronic means while participating in the meeting is permitted.

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

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

Question: If the owners corporation decides to remove the committee at an EGM two months before the AGM, does a new committee get elected at the EGM?

Section 30 of the Strata Schemes Management Act 2015 tells us the election of strata committees occurs at each AGM. If the owners corporation decides to remove the committee at an EGM two months before the scheduled AGM, does a new committee get elected at the EGM?

There are two motions on the EGM agenda:

Answer: If only some people on the strata committee had their roles vacated, the remaining committee members could vote to fill the vacant positions.

I’m assuming the owners corporation has passed, or plans to pass, a special resolution under section 35(1)(e) of the Strata Schemes Management Act 2015 to vacate each person’s position as a strata committee member.

This approach would leave the owners corporation without a strata committee until the next AGM. If, however, only some of the people on the strata committee had their roles vacated, then under section 35(2), the remaining committee members could vote to fill the vacant positions.

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

This post appears in Strata News #649.

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:

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: Can an owner of a strata unit continue as a member of the Owners Corporation if they have signed an option to sell?

Answer: If someone has signed an option to sell but the lot hasn’t transferred, they still have the right to nominate and sit on a strata committee.

Yes – if someone has signed an option to sell but the lot hasn’t transferred, they still have the right to nominate and sit on a strata committee (subject to remaining eligible – i.e. they are an owner or the person who nominated them is an owner). See Strata Schemes Management Act 2015 – Sect 35

35 Vacation of office of elected member of strata committee

  1. An elected member of a strata committee vacates office as a member–
    1. if the person was eligible to be a member at the time of election and the person ceases to be so eligible (other than because the person is an unfinancial owner), or

    2. if the person was not an owner at the time of election or was a company nominee and the individual who nominated the person for election or the corporation for which the person is a company nominee ceases to be an owner or gives written notice to the owners corporation that the person’s office is vacated, or

    3. on the receipt by the owners corporation from the person of notice in writing of the person’s resignation as a member, or

    4. at the end of the next meeting at which a new strata committee is elected by the owners corporation, or

    5. if the owners corporation, in accordance with a special resolution, determines that the person’s office as a member is vacated, or

    6. if the person dies.

  2. A strata committee may appoint a person eligible for election as a member to fill a vacancy in the office of a member of the strata committee, other than a vacancy arising under subsection (1) (d) or a vacancy in the office of an officer of the owners corporation. Any person so appointed holds office, subject to this section, for the balance of his or her predecessor’s term of office. Note : Section 45 (2) provides for the filling of vacancies in the office of members who are officers of the owners corporation.

  3. A special resolution that determines that the office of a member is vacated may relate to more than one member of a strata committee or to all members of a strata committee.

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

This post appears in Strata News #610.

Question: In our large complex of 15+ unit blocks with 400+ lots, we have a committee of 7. How can such a small committee run such a large complex?

I am in a large complex comprising of over 15 unit blocks with over 400 units. We only have a single committee of 7 people, a Building Manager and a Strata Manager.

I would have thought that a complex of this size should have a larger committee with at least one team member from each apartment block. Is that necessary at all?

Can you explain how such a small committee works in such a large complex?

Answer: 9 members is the maximum number of members that are allowed.

Great question. The act says that the number of members to be appointed to a strata committee for a large scheme (one with over 100 lots excluding utility lots) is 3-9 members. 9 members is the maximum number of members that are allowed.

In many instances, large strata schemes have poor owner participation and it is difficult to attract active and suitable strata committee members.

In my experience, seven members is a typical number of committee members that we would expect to have on a building this size. I would think that the ideal mix of members for your strata scheme would be a variety of representatives from across the buildings.

One option that you could consider is to establish an informal sub-committee comprising of one member from each building that could meet a few times a year with the strata committee. This could provide a forum for each building to bring up any matters that they are facing so that the Strata Committee can prioritise building and compliance items and make sure that all buildings are being equally and fairly treated.

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

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

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: If some members nominated for the committee knowing they were to sign a Code of Conduct and once elected, refuse to sign, can their nomination be considered invalid?

At our recent AGM it was resolved that Strata Committee members sign a standard code of conduct form. 7 owners were nominated and were accepted on the committee of 7. As there were 7 nominations, there was no need for an election. However, 3 of the 7 nominees were on the previous committee and have refused to sign the Code of Conduct and are still refusing to do so following two committee meetings. They say the reason for not signing is a “matter of conscience”.

If they nominated knowing they were to sign the Code of Conduct as resolved by owners on a majority vote of 28 to 8 and now refuse to sign, can their nomination be considered invalid and they be removed from the strata committee?

Answer: If the Committee were duly appointed there would not be grounds to remove them.

If the Committee were duly appointed at a properly convened General Meeting there would not be grounds to remove them unless the process followed in the Strata Schemes Management Act 2015 were not followed.

Section 35 (3) of the Strata Schemes Management Act 2015 specifies that the office of a member is vacated must be by Special Resolution (which can only be considered at a General Meeting):

35 Vacation of office of elected member of strata committee

…

(3) A special resolution that determines that the office of a member is vacated may relate to more than one member of a strata committee or to all members of a strata committee.

At the time of election at the next Annual General Meeting, I would suggest that when the owners are considering the nominations that are received, the nominees are asked to sign the Code of Conduct. If any nominees do not wish to sign it the owners can then use that information to determine the number of Committee members and consider a ballot, as that information could form part of their determination on who they wish to appoint to the available positions.

Robert Fothergill Strata Life E: Robert@thestratalife.com.au P: 02 9456 9917

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

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: Our new managing agent took on oral nominations to increased the number of members on the committee from 6 to 9. Is this action approved?

Our strata consists of 75 lots. We have recently appointed a new strata managing agent. This agent has taken oral nominations, followed by a committee-only vote, to increase the number of committee members from six to nine. They are claiming this can be done under Section 35(2) the Act. There have not been any vacancies created by the resignation etc of the appointed committee. Is this action approved?

Answer: The members of the strata committee must be elected at each annual general meeting, therefore, the action does not comply with the legislation.

Pursuant to Section 30 of the Strata Schemes Management Act, 2015 (NSW), 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). As you correctly state, the section you refer to is for the filling of vacancies. The members of the strata committee must be elected at each annual general meeting, therefore, the action does not comply with the legislation.

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

This post appears in Strata News #457.

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: If an office holder on the executive committee sells her unit, is the new lot owner allowed to replace this position and vote at meetings until the new office holders are elected at the next AGM?

Answer: As the Committee can no longer achieve a quorum, they will need an EGM to fill the vacancies.

The committee can (and should) fill the vacancy. The owner can continue if the person who nominated them has not sold. If the owner self-nominated they cannot continue unless they are re-voted back onto the committee.

See STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 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,

Once the person who nominated them to the committee sells they are no longer an owner and thus no longer meet the criteria above – hence see S45 below. Thus they need to be voted back on – by the committee (no nomination by an owner is needed however).

See STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 35 Vacation of office of elected member of strata committee

  1. An elected member of a strata committee vacates office as a member–
    1. if the person was eligible to be a member at the time of election and the person ceases to be so eligible (other than because the person is an unfinancial owner), or
  1. A strata committee may appoint a person eligible for election as a member to fill a vacancy in the office of a member of the strata committee, other than a vacancy arising under subsection (1) (d) or a vacancy in the office of an officer of the owners corporation. Any person so appointed holds office, subject to this section, for the balance of his or her predecessor’s term of office.

See STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 45 Vacation of office by officer

  1. An officer of an owners corporation vacates office as an officer: (ie this is the chairman, secretary or treasurer)
    1. if the person ceases to be a member of the strata committee, or

    2. on the receipt by the owners corporation from the person of written notice of the person’s resignation as an officer, or

    3. if another person is appointed by the strata committee to hold that office, or

    4. if the owners corporation, by special resolution, declares that the person’s office is vacated, or

    5. if the person dies.

  2. A strata committee is to appoint a person who is a member of the strata committee, or who is eligible to be a member of the strata committee, to fill a vacancy in the office of an officer of an owners corporation, other than a vacancy referred to in section 35 (1) (d). Any person so appointed holds office, subject to this section, for the balance of his or her predecessor’s term of office.

Karina Heinz W: https://www.prostrata.com.au/ E: manager@prostrata.com.au P: 02 9389 9599

This post appears in Strata News #372.

Question: Since our AGM 9 months ago, our strata committee of seven has been reduced to 3. Can the 4 members be replaced without a meeting, and if so what is the correct procedure?

Our Strata committee had 7 members at the AGM 9 months ago. Since then, 4 have resigned for different reasons at different times.

Can these 4 members be replaced without an AGM, and if so what is the correct procedure?

It seems that 2 new members have been appointed without asking for nominations from owners and there is no evidence of formal ratification from the existing committee members.

The original number of 7 committee members was decided at the AGM in Jan. With the 4 resignations occurring over the year, the committee has been operating at 3 members for some months, during which an EGM was called and the strata manager was replaced.

Is this considered valid legally when the requisite number of committee members was not 7 all these months? Are the decisions valid?

Answer: As the Committee can no longer achieve a quorum, they will need an EGM to fill the vacancies.

If there were 3 vacancies out of a total of 7, the committee could have filled the three positions at a meeting, as they could still have achieved a quorum. This is no longer possible, so they will need a meeting of all owners (EGM) to fill the vacancies.

Two new members are not legal if this was done without a meeting. Nothing counts if it’s not at a meeting. For anything important it takes a meeting with an agenda, notice period given and minutes.

If they were voted on within a meeting, but no other nominations called, that is fine. There is no obligation to call for nominations. The committee can co-opt on whomever they wish to work with.

Like everything in strata, there is a process and it needs a meeting!

Karina Heinz W: https://www.prostrata.com.au/ E: manager@prostrata.com.au P: 02 9389 9599

This post appears in Strata News #326.

Question: How long can a strata committee member or chairperson hold positions on the executive committee? Also, can the committee engage designers without lot owners agreeing to this appointment?

Answer: There is nothing to stop the same office bearers/members from being re-elected.

As you may know, the number of members is determined annually at each AGM and the positions filled at the strata committee meeting held immediately thereafter. So, theoretically, positions on the executive committee are retained from year to year and there is nothing to stop the same office bearers/members from being re-elected (subject to the number of members not being reduced and none of them being removed or retiring or selling etc).

It is not unusual for office bearers to keep being re-elected from year to year if they carry out their functions effectively.

In terms of a designer, generally, if you mean an ordinary contractor to be engaged by the Owners Corporation, a strata committee can appoint one unless the owners corporation makes a decision which overrides it or unless, before the committee makes a decision, lot owners, comprising more than a third of the unit entitlements give notice of opposition to the making of a decision.

However, any change of design / overall appearance of the lot will require a special resolution at a general meeting.

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

This post appears in Strata News #208.

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.

Question: Could you please tell me the correct procedure when the body corporate chairman resigns before the AGM

Could you please tell me the correct procedure required when the body corporate Chairman resigns before the Annual Meeting. Is it OK for the existing committee to select one of its members to act until the next annual meeting?

Answer: The body corporate chairman resigns, the Owners Corporation must appoint a person eligible for election as a member to fill the vacancy

Our reply is based on a Strata Scheme –

If a member has resigned from the Executive Committee it means a vacancy on the Executive Committee has occurred. The number of members set at the last Annual General meeting cannot be changed until the next Annual General Meeting. As such the Owners Corporation must appoint a person eligible for election as a member to fill the vacancy, for the balance of his or her predecessor’s term of office.

The Executive Committee have the power to fill the vacancy, this does not have to be referred to a General Meeting. The Vacant position can be filled by either calling on written nominations from all owners or inviting an owner to self–nominate (if eligible for election), which then must be considered and approved at a properly convened Executive Committee meeting.

Until such time the vacant position is filled, the Executive Committee members present at the meeting must elect someone to chair each meeting only, until a new chairperson is elected. The person elected must be entitled to vote as per Schedule 2, Part 2, Clause 15.

Schedule 2 Meeting procedures of strata committees

8 Chairperson to preside

  1. Chairperson to preside The chairperson of the owners corporation is to preside at any meeting at which the chairperson is present.

  2. Presiding member where chairperson absent In the chairperson’s absence from a meeting, the members of the strata committee present at that meeting may elect one of their number to preside at that meeting and the person so elected is, while so presiding, taken to be the chairperson.

  3. Chairperson does not have casting vote The chairperson does not have a casting vote in relation to any motion but may vote in his or her own right if otherwise entitled.

  4. Chairperson may be the only person present A meeting is, subject to the provisions of this Schedule relating to the quorum, validly held even though the only person present at the meeting is the chairperson of the owners corporation.

Question: What is the procedure for filling a strata executive committee vacancy?

Our Executive committee has two vacancies. A nomination was sent to them and then they advertised the vacancies. If they put up two other candidates do they then have the right to choose who they want or does it then go to an Executive General meeting for all owners to vote?

Answer: The Executive Committee has the power to fill a vacancy on the committee.

The Executive Committee has the power to fill a vacancy on the committee. Filling vacancies doesn’t have to be referred to a general meeting. The committee must, however, make the decision at a properly convened executive committee meeting and table the written nomination electing for the vacant position.

The election of the committee is, however, a decision of owners at each Annual General Meeting.

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.

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

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