Lot owners in a community title scheme have a statutory right to nominate for a position on the body corporate committee.

In this article we discuss the eligibility requirements for each regulation module. In other words, who can and who can’t be on the committee – including due to a relationship with another person (such as the caretaker).

As general rule, each regulation module sets out criteria which makes a person:

• eligible to be a committee member; and
• ineligible to be a committee member.

Both requirements must be met to be a committee member.

For example, one ineligibility criteria is an associate of a service contractor. As associate is broadly defined, it can unintentionally exclude committee members from being on the committee in some peculiar circumstances.

Standard and Accommodation Modules

To be eligible under the Standard or Accommodation Module the person must be:

• An individual owner in their own right;
• A family member of the individual owner (only including a spouse, child more than 18 years old, parent, brother or sister);
• A person with a power of attorney from the individual owner;
• A director, secretary or “other nominee” of the company owner; or
• A representative of a subsidiary scheme for a subsidiary scheme owner.

Even if a person meets the eligibility criteria above, they must also not satisfy any of the ineligibility criteria.

A person is ineligible if they:

• Are a body corporate manager, service contractor (which is when there is a contract with the body corporate for a term of more than 1 year) or letting agent;
• Are an associate of a body corporate manager, service contractor or letting agent (associate means a relationship or series of relationships that can be traced through marriage, de facto, ascendant, descendent, partnership, employment, fiduciary, arrangement to act in accordance with instructions or wishes of another, corporation-executive officer and corporation-substantial influencer);
• Conduct a letting business for the scheme (i.e. they operate a rent roll). Notably this does not extend to associates of those conducting a letting business for the scheme; and
• Owe a body corporate debt (or the person they nominate does).

As set out earlier – associate is broadly defined. It would encompass many types of relationships including a committee member being engaged by the caretaker to carry out tasks (even if there is no formal agreement or remuneration arrangement) or even co-directorships of unrelated companies. The only relationship that is excluded is when the caretaker acts as a letting agent for the lot owner.

Commercial Module

The Commercial Module, as with other matters it regulates, is much more flexible in relation to the administrative requirements imposed on bodies corporate.

Relevantly, a person is eligible to be on the committee if they are an owner or are simply nominated by an owner. This allows a much broader range of potential committee members.

There are also less ineligibility considerations.

A person is ineligible if they:

• Are a body corporate manager (or associate); or
• Owe a body corporate debt (or the person they nominate does).

Small Schemes Module

A committee for a scheme regulated by the Small Schemes Module only has a single person or a second person acting as secretary and treasurer – it is not a full committee like the other regulation modules.

Similarly to the Commercial Module, eligibility is determined by ownership of a lot or nomination of another person by an owner.

A person is then ineligible if they:

• Are a body corporate manager or service contractor (or associate); or
• Owe a body corporate debt (or the person they nominate does).

Written by Todd Garsden

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