Article supplied by: Chris Irons, Commissioner for Body Corporate and Community Management
As the day-to-day decision-making body on behalf of their body corporate, the body corporate committee plays an integral role. Its composition and a person’s eligibility (or not) for membership of the committee can sometimes be a hotly-contested subject.
So let’s look at a few important points, particularly on the topic of eligibility. This is general information intended as a guide and may not be relevant in all cases.
The position of a voting member of the committee becomes vacant (known as a casual vacancy) if the member:
- resigns in writing to the chairperson or secretary;
- is not present personally or by proxy at two committee meetings in a row without the committee’s consent;
- is convicted of an indictable offence (i.e. a more serious crime, whether or not a conviction is recorded);
- is removed by an ordinary resolution of the body corporate;
- dies; or
- becomes ineligible to hold the position.
A member can become ineligible to hold a committee position if they:
- were a lot owner at the time they were elected, but have since stopped being a lot owner;
- were not a lot owner but were nominated by a lot owner who has since stopped being a lot owner; or
- have been engaged as a body corporate manager or service contractor or authorised as a letting agent.
In relation to ceasing to be a lot owner (i.e. due to the sale of the lot), ineligibility commences on settlement, not, for example, when the contract of sale is signed.
I sometimes hear of instances where someone has stopped being a lot owner, but either they want to continue being part of the committee, or the body corporate wants them to remain on the committee.
There may be some good reasons for this. For example, the former lot owner might have some considerable business or other experience and expertise which would be useful to the committee and the body corporate as a whole.
There is nothing preventing the committee from seeking input or advice from this person. From a best practice point of view, if a committee is considering ‘using’ someone in this way, it might be a good idea for them to be as clear and transparent as possible about it, for example, by communicating to the body corporate what the person’s role is (and is not).
Then there is the matter of possible removal of a committee member.
Before talking about this, I would urge committees and bodies corporate in this position to carefully reflect upon their intentions and the consequences of their possible actions, prior to undertaking a removal process.
It might be a lot simpler (and a lot less confrontational in the long run) to try to informally resolve whatever issues exist that lead to a committee or body corporate trying to remove a committee member.
Strange as it may sound, the committee member in question may not be fully aware of these issues, so talking about the issues first could go some way to getting them resolved.
Where there are personality or communication issues involved, getting an alternative dispute resolution process in place could be a good idea. This might be as simple as having the committee member in question sit down with another committee member or members, together with someone else who could be relied upon to impartially encourage a resolution.
Remember that removing a committee member may result in long-lasting animosity and disharmony, so undertaking a formal process of removal should be something to be pursued where all other options have failed.
There are two ways to remove a committee member.
The first way is removal via the code of conduct for voting committee members. It is a reasonably prescriptive process, outlined in more detail at https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/forming-a-body-corporate-committee/removing-committee-members/. It is a process based on the principles of natural justice, which means that the committee member in question is given the right of reply to the notice of alleged breach of the code.
The second and, arguably, simpler method is to seek to remove a member from office by ordinary resolution at a general meeting.
The person submitting the motion to a general meeting does not need to give the reason for the removal, although if said motion refers to the code of conduct then the process outlined at the link above would have to apply.
As we see from time-to-time in all levels of government, eligibility for and removal from office prompts fierce interest from all sides. So questions about eligibility for and removal from office in a body corporate context should be carefully considered – with qualified legal advice sought as necessary – and decisions about either matter should not be taken lightly.
For further information about the body corporate legislation please contact our Information Service on Freecall 1800 060 119, or visit our website www.qld.gov.au/bodycorporate.
Be prepared