2021 is upon us and people everywhere have been engaging in the time-honoured tradition of setting new year’s resolutions. A typical resolution involves the promise of spending less time with badly behaving people.
Living in a body corporate is all about community and the people on the body corporate committee play a unique role in facilitating that space.
Unfortunately, we all know that one very unhelpful committee member. The one that acts only in his or her bests interests, bullies other committee members or lot owners and often, doesn’t even pay their levies on time.
So why not improve 2021 by considering your lawful powers to remove such badly behaving committee members?
It’s normal to want to avoid taking such action, but the process is straightforward if properly managed.
When can a committee member be removed?
A Body Corporate is able to remove a committee have member for:
- breach of the code of conduct; or
- by simple majority vote.
All committee members must comply with the Code of Conduct which is set out in the Body Corporate and Community Management Act 1997 (Qld). These rules require all committee members to act in the best interest of the body corporate and act honestly, fairly and professionally. There are also obligations to act with skill, care and diligence and not engage in any fraudulent or misleading conduct.
Notice of Breach
In the event of an alleged breach, the body corporate is required to issue a breach notice in the matter set out in the relevant modules which in summary must:
- be in writing;
- include details about the breach (600 words max);
- allow no less than 21 days for the member to provide a written response to the notice (600 words max);
- offer to pay the member’s reasonable expense of responding to the notice;
- notify the member that a motion to remove the member will be considered at the next general meeting of the body corporate;
- If a breach notice is issued and the above process is followed, the body corporate must, at the next practicable general meeting, consider a motion to remove the committee member.
The process to remove a committee member merely requires an ordinary resolution won by a simple majority of votes.
Points to consider
Though case law suggests that the power to remove a body corporate committee member by a simple majority vote is discretionary, there are circumstances in which it is unlawful to remove a committee member. For example, it is unlawful to remove a member for reasons which are discriminatory, i.e. because of certain attributes held by the member such as their gender, relationship status or race- to name a few.
Furthermore, although the administrative steps to follow are straightforward, disputes can arise which may end up in the Body Corporate Commission so it’s essential to seek legal advice prior to commencing the process.
COVD-19 forced us to change the way we live our lives. For many of us, home is now a workspace and there’s little separation between domestic and work duties, let alone spare time.
The body corporate community can be another place for human connection and support in disruptive moments in time. Having the right people leading your community is now even more essential.
For more information regarding the above process, please contact us.
Author: Zosia Kilmartin, Director, Kilmartin Knyvett Lawyers