Every day, we read of the power that is wielded by elected persons around the world, either as a result of our democratic process or somebody engineering themselves into being the head of government. It is an interesting concept of democracy that we are all willing to exercise a voting right to put a person in power and then that power can be wielded with quite a degree of discretion and decision making by that person.
Then you get the complete opposite where a government will not move to make a decision without a referendum or a plebiscite from the people giving it a direction i.e. same sex marriage recently in Australia and abortion laws in Ireland.
Given the context that a Body Corporate is a form of government with a decision making system, a Committee and Executive positions of Chairperson, Secretary and Treasurer, how does any power rest in the hands of the Committee/Chairperson?
The answer is one which may disappoint many Chairpersons – that there is no extra power given to a Chairperson of a Body Corporate other than to chair the general committee meetings with right to rule a Motion out of order (only if there is reasonable advice for such a ruling) and even then, the members present at the meeting may overrule the Chairperson by ordinary resolution moved from the floor.
Unfortunately, Body Corporate managers, lot owners, committee members and on site building managers often are not aware that the Chairperson does not have any extra powers or voting ability, perhaps because they assume from the media that being given such a title makes a person a decision maker and controller of the government of the building. Definitely that is not so.
The Queensland Government has an online publication speaking of the committee’s role, lot owner’s rights and the law, from which I quote:-
The Chairperson must chair all general meetings and committee meetings they attend. If the Chairperson is not at a meeting, the voters who are there can choose another person to chair that meeting.
When chairing a general meeting, the Chairperson’s duties include:-
- Ruling a motion out of order if:
- It is unlawful or unenforceable
- It conflicts with the by-law
- The substance to the motion was not included in the agenda for the meeting
- Declaring the results of votes on motions at the meeting
- Confirming that each ballot paper is the vote of a person who has the right to vote in the election (or a ballot for a committee position is needed)
- Declaring there is a result of an election for a committee position.
If the Chairperson rules a motion out of order they must give reasons, and give the meeting the chance to overturn their decision.
The Chairperson does not have more authority than anyone else on the Committee.
So you can see from the above that a Chairperson’s power is very limited because of the Body Corporate and Community Management Act.
Turning to the role of the Committee, again it is very limited. In effect, the Committee cannot make any major decision about the building, its common property, lots and occupiers. Such items are reserved for decisions at a general meeting, on which all members can have a vote and for which there are various types of resolutions which must be decided i.e. ordinary resolution, special resolution or resolution without dissent. However, once a general meeting has decided an item then the Committee may act to carry out that decision.
The Act and Module very much restrict committee decisions and the Government publication points out that a committee cannot make decisions about:-
- Setting or changing Body Corporate levies
- Changing the rights, privileges, or obligations of lot owners
- Decisions that have to be made by ordinary resolution, special resolution, resolution without dissent or majority resolution
- Starting a legal proceeding, unless it is: –
- To recover a liquidated debt against the owner of the lot
- Relating to a proceeding where the Body Corporate is already a party
- For an offence under a by-law contravention
- A dispute resolution application lodged with the Commissioner
- Paying money to committee members unless it is :
- Less than $50.00 incurred by a committee member attending a committee meeting
- Not more than $300.00 reimbursed to a committee member in a 12 month period.
There is of course also a committee spending limit applicable to the committee, affected by the number of lots in the scheme and the module applying.
I mention all of this so in future people in bodies corporate will have the knowledge and confidence to make certain that the limitations on power may be better understood, so that people who might start a power play may be bought back to the reality of these limitations.
Knowing these limitations may also encourage many other people to step up to playing a role as a committee member or a Chairperson, knowing that they do not have to be extraordinary leaders or indulge in exercising a control over others.
In a Body Corporate there certainly is “power to the people”.
ARTICLE BY JOHN PUNCH – SHORT PUNCH & GREATORIX