Commissioners Corner – Committee Eligibility (QLD)
Body corporate committees have the day-to-day responsibility for ensuring the body corporate’s affairs run smoothly.
Depending on the scope of those affairs, the responsibility of a committee member, including being responsible for a significant amount of property and funds, might be considerable and there might be, as a result, a bit of competition for committee membership within the body corporate.
It is therefore no surprise that queries about eligibility for committee membership are commonly received by my Office, as both information enquiries and as part of a dispute resolution application.
To begin with, a bit of background. Committee eligibility is defined in the applicable regulation modules. As a general rule, a person is automatically eligible if they are a lot owner. Despite that, they become ineligible if they are an associate of:
- a body corporate manager;
- service contractor;
- letting agent; or
- caretaking service contractor.
Now the question arises quite often, ‘What is an associate?’
The answer to this is provided in section 309 of the Body Corporate and Community Management Act 1997 (the BCCM Act).
That said, in March 2016 this section was amended as a result of the Relationships (Civil Partnerships) and Other Acts Amendment Act 2015. Specifically, section 309(2)(a) of the BCCM Act was amended from ‘registered relationship’ to ‘civil relationship’. This section (as amended) states:
309 Associates
(1) For this Act, a person is associated with someone else if—
(a) a relationship of a type to which this section applies exists between them; or
(b) a series of relationships of a type to which this section applies can be traced between them through another person or other persons.
(2) This section applies to relationships of the following types—
(a) marriage, de facto relationship or civil partnership;
(b) the relationship of ascendant and descendant (including the relationship of parent and child) or the relationship of persons who have a parent or grandparent in common;
(c) partnership;
(d) the relationship of employer and employee;
(e) a fiduciary relationship;
(f) the relationship of persons, 1 of whom is accustomed, or under an obligation (whether formal or informal), to act in accordance with the directions, instructions or wishes of the other;
(g) the relationship of a corporation and executive officer of the corporation;
(h) the relationship of a corporation and a person who is in a position to control or substantially influence the corporation’s conduct.
(3) Despite subsection (2)(e) and (f), the owner of a lot in a community titles scheme and a letting agent for the scheme are not associated merely because of their relationship as owner and letting agent.
(4) In subsection (2)—
executive officer, of a corporation, means a person who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.
So when trying to determine if a person is an ‘associate’ of a body corporate manager, service contractor, letting agent or a caretaking service contractor, section 309 of the BCCM Act should be reviewed initially. This is the primary consideration as to whether or not a person is an associate and therefore ineligible to be nominated or elected to a voting member’s position on the committee.
Obviously there are other eligibility requirements that need to be met. One of these requirements is whether the nominee proposed by the lot owner is considered a member of the individual’s family.
While the regulations provide for the definition of family to include an individual’s spouse, the regulations do not give a definition of ‘spouse’.
The Acts Interpretation Act 1954 (the Acts Interpretation Act) provides this definition, which has itself been amended as a result of Relationships (Civil Partnerships) and Other Acts Amendment Act 2015.
Previous to these amendments, adjudicators had determined the question of whether a spouse included a person in a same-sex relationship under the definition of ‘spouse’ in the Acts Interpretation Act. Following the amendments in March 2016, same sex relationships are now captured under the definition of civil relationship and/or de facto relationship under section 309 of the BCCM Act.
One recent adjudicator’s decision which addressed both eligibility requirements relating to associates and same sex relationships is available at: Q1 [2015] QBCCMCmr 391 (20 August 2015).
Perhaps the key consideration in this discussion is that considerations around eligibility generally can be quite complex. It may therefore be prudent to seek legal advice on the issue of committee eligibility.
While the Information Service of my Office cannot provide a ruling on whether or not a person is deemed an associate, they can be contacted on Freecall 1800 060 119 to obtain general information on the provisions in the legislation including those relating to committee eligibility. This can also be done through an online enquiry at www.qld.gov.au/bodycorporatequestion. Detailed information on committee eligibility, nominations and elections is outlined on our website www.qld.gov.au/bodycorporate.
This article was contributed by Chris Irons, Commissioner for Body Corporate and Community Management.
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What can be done about a lot owner and the body corporate management being closely associated in that the body corporate defends a lot owner continuously. The lot owner is also acting as a contractor doing the cleaning in our building. No invoices are presented at the annual general meeting, The body corporate management pays the lot owner/contractor without authority from the committee. If you ask for these invoices or question the work being performed, the body corporate management sends emails defending the lot owner/cleaner/Secretary of body corporate and actually tells untruths to back her up, and treats you like you are some sort of trouble maker and threatens you with some sort of action in regard to common property etc.. This lot owner/cleaner/Secretary is also being paid for gardening works, and who knows what else. This body corporate management does not operate within the rules and guidelines, but merely works for the good of this one lot owner. All other committee members do not want any friction so they just go along with it and the Lot owner/secretary/cleaner tells untruths to other committee members to get things passed for her benefit.. This lot owner is very abusive and has a personal vendetta against me, body corporate management will not do repairs to my lot, even if the committee approves it., and carries on the lot owners vendetta and tells me I am the one with the vendetta. Very frustrating. I own my lot and the body corporate ignores me, does not answer my emails or requests. I have wasted money on Solicitors and mediation to no effect.
Hello Julie,
I am experiencing very similar issues to yourself. It is very frustrating to say the least! When i raise any questions/issues i am also ignored. I do not receive any financials. They are not disclosed to me. No matter what i have tried like yourself it does not work!!
Lisa
It is very unfortunate that the legislation does not prohibit a caretaker or its contractor from having any right to influence or direct all its landlord owners who to vote for as committee members. This results in caretaker stacked members who are not focused on contract provisions regarding performance of duties. Landlords are focused on receipt of rents.
Hi Suzanne and thanks for your comment. You may be aware that body corporate legislation is currently under review. You can look at past and present review materials and possibly make a submission, at http://www.justice.qld.gov.au/corporate/community-consultation/community-consultation-activities/current-activities/review-of-property-law-in-queensland.
We have a situation in our CTS where the BC Secretary and his wife, the BC Treasurer are also claiming Insurance Brokerage fees for their Insurance Brokerage Company from the Body Corporate without fully disclosing any conflict or their financial interests and the reasons why our BC is expected to pay two separate brokerage fees for the one policy. Any questions asked regarding Insurance sent to the BC Secretary/Insurance Broker are ignored and remain unanswered.
Initially, when (The Secretary and Treasurer) first elected as BC Committee members their services were published as pro-Bono but over the last three years have claimed fees well over $25,000 as the secondary Brokerage Company for or BC.
We have gone to the Actual Insurance Brokers and the insurance Ombudsman to complain but whilst very sympathetic, will only deal with BC Committee members. The Committee we have is a cartel who find their way of being re-elected each year at any cost. We as Lot owners are at our wits end! Elections are the end of may and we can only expect more of the same.
Hi Barbara and thanks for your comment. I suggest contacting the Information Service of my Office on 1800 060 119 to get some further information about this matter.
The information guidance from the BCCM Commission, especially Rosemary, is highly valued by myself and owners at a large Community Scheme on the Gold Coast. Please continue to provide this necessary service. There are few if any reliable reference points concerned owners can access for discussion to assist problem solving in the Body Corporate environment.
Hello Deidre and thank you for your comment, particularly your compliments. I will ensure these are passed on to our Information Service.
Hi Julie and Lisa and thank you for your comments. I suggest contacting the Information Service of my Office on 1800 060 119 to get some further information about these matters.
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