Strata committees play a critical role in the management of strata schemes, representing the owners corporation in decision-making and ensuring the effective administration of common property. But what happens if a committee member is no longer fulfilling their duties or is acting against the interests of the strata? In New South Wales, there are clear legal pathways to remove a strata committee member, but they must be navigated correctly. This blog article outlines when and how a committee member can be removed from a strata committee, complete with examples for clarity.
Understanding the Legal Framework
In NSW, strata committees are governed by the Strata Schemes Management Act 2015 (the Act). This legislation sets out the rights and responsibilities of strata committees and owners corporations, as well as the processes for handling disputes and changes within the committee structure.
Convening a General Meeting
To remove a committee member, the first step is to convene a general meeting of the owners corporation. The motion to remove the committee member must be included on the agenda of this meeting. Under the Act, sufficient notice of the meeting must be given to all owners, and the agenda must clearly specify the motion for removal.
Recent changes have streamlined the process for owners' corporations to remove underperforming committee members. The amendments to NSW strata laws have introduced clearer and more accessible guidelines:
Ordinary Resolution for Removal: The owners corporation can now remove a committee member through an ordinary resolution at a general meeting. This is a significant change from the previous requirement for a special resolution, making it easier to take action when necessary.
Ineligibility Period: Once a member is removed, they are barred from being re-appointed or re-elected to the strata committee for 12 months from the date of the resolution. This ensures that individuals who were removed cannot immediately return, providing a safeguard against repeated issues and allowing the owners' corporation to refresh committee membership effectively.
Example: A strata committee member, John, has consistently failed to attend meetings and engage in decision-making. Other committee members believe this is impeding the progress of the committee's work. To address this, an owner submits a request for a general meeting to discuss and vote on John's removal. If the resolution to remove John is resolved, John will be ineligible for reappointment for 12 months.
Grounds for Removal
While the Act does not require specific grounds to be cited for the removal of a committee member, having justifiable reasons can strengthen the motion and build consensus among owners. Common grounds for removal include:
Non-attendance: Consistent failure to attend meetings.
Misconduct: Acting in a manner that breaches the member's duties or conflicts with the interests of the owners' corporation.
Conflict of Interest: Failure to declare conflicts of interest that may affect decision-making.
Example: Sarah, another committee member, has been using her position to influence decisions that benefit her private business interests. Owners in the strata community become aware of this conflict of interest and convene a meeting to vote on her removal. The motion passes with a strong majority after evidence of her actions is presented.
NCAT Intervention for Strata Committee Member Removal
In cases where the internal removal process is insufficient or the issue is severe, the NSW Civil and Administrative Tribunal (NCAT) has the power to intervene and remove individual committee members or even the entire committee under certain circumstances, as outlined in Section 238 of the Strata Schemes Management Act 2015. This section is designed to uphold proper governance and address significant issues affecting the strata scheme.
Removal Criteria:
NCAT may remove a committee member if they:
Violate NSW strata laws: This includes breaching the Strata Schemes Management Act 2015, related regulations, or the by-laws of the specific strata scheme.
Fail to exercise due care and diligence: Committee members are expected to perform their duties responsibly and with an appropriate level of attention.
Engage in serious misconduct: Actions that compromise their duties or the interests of the owners' corporation fall under this category.
In Vojkovic v Savva, NCAT clarified that the criteria for removal outlined in Section 238 are not exhaustive. This means that NCAT may consider other relevant factors to ensure the integrity of the committee and protect the interests of the community.
Removing a strata committee member is a significant decision with the potential for far-reaching legal and community impacts. It is vital for owners and strata managers to approach the process with due care and a thorough understanding of the relevant legal requirements. Whether considering removal through a general meeting or escalating the issue to NCAT, each method involves specific procedures and implications that must be carefully navigated.
Key Points to Remember When Considering Strata Committee Member Removal:
Due Diligence: Approach the process with careful planning and knowledge of the legal framework.
Evaluate All Options: Consider the pros and cons of removing a member at an AGM, seeking NCAT intervention, or exploring alternative dispute resolution.
Fairness and Harmony: Strive to maintain fairness and prioritize the community’s overall well-being.
Professional Guidance: When uncertain, seek advice from a qualified strata managing agent or lawyer to ensure that the process is handled correctly.
Operational Considerations: Remember that removing a committee member can temporarily affect the day-to-day running of the strata scheme, impacting tasks like capital works and updates to the strata roll.
Taking these factors into account will help maintain effective governance and safeguard the interests of the strata community during what can be a challenging process. For expert advice and support in navigating the complexities of strata committee member removal, contact Compass Strata. Our experienced team can guide you through each step, ensuring compliance with legal requirements and preserving community harmony. Reach out to us today to make informed, confident decisions for your strata scheme.
