WA: Q&A Votes, the Voting Period and Unit Entitlements

Our unit entitlements were determined 20 years ago. About five years ago, one property carried out significant extensions, which changed the value of the property considerably. The unit entitlements were not updated. Soon after, the property changed hands.

One owner wants the unit entitlements reviewed as they pay higher levies than the house owners with the extension. Who pays for the review of unit entitlements, the strata body or the new owners? Including the re-survey fees and the cost of the Landgate plan lodgement fee, we’ve been quoted $5000 for the review.

Answer: Do all the owners agree? I know it’s a silly question, but I have to put it out there.

Without a copy of the strata plan, I can only give a generalised explanation.

It might be that the strata scheme was registered prior to the Strata Titles Act 1985. If so, all the land outside the buildings shown on the strata plan is common property.

If the strata scheme was registered under the 1985 STA then the land around the building may be shown as a Part Lot but would still require approval from the strata company.

The situation gets more involved from here, as the previous owner has either built on the common property land or has built the extension on the Part Lot land, which is owned by that proprietor.

So, if we do a summary so far, the unit entitlements (assuming that they were done by a valuer under the 1985 STA) are based on the capital improved value of the land. The value of the building is a capital improvement as opposed to a vacant lot.

Section 37 of the 1985 STA

37. Schedule of unit entitlements

The schedule of unit entitlements for a strata titles scheme must —
1. allocate a whole number (a unit entitlement) to each lot in the strata titles scheme; and
2. state the number that is the sum of the unit entitlements of all the lots in the strata titles scheme.

Note for this subsection:

The unit entitlement of a lot determines —

the interest of the owner of the lot in the common property in the strata titles scheme: see section 13; and

subject to the scheme by-laws, the contributions payable by the owner of a lot in the scheme: see section 100; and

the voting rights that attach to the lot: see section 120.

This will mean that the original unit entitlement (UE) values done by the valuer when the strata plan was registered will now be incorrect.

The lot with the extensions will be worth more, and its UE value should increase, causing the other lot UE’s to go down.

Here comes the tricky part. Do all the owners agree? I know it’s a silly question, but I have to put it out there…

Updating the strata plan will result in a Type 4 re-subdivision – a surveyor will be required to draw up the new boundaries for the lot – see Section 35(1)(c)(i) a unanimous resolution will be required, plus more expense for the surveyor.

The new owner should have been aware of what they were buying or had the strata plan explained to them, as the lot purchased would not be the same as on the strata plan.

Documents will also need to be prepared for lodgement at Landgate.

Consent from mortgagees will need to be obtained.

In some cases, there may be an error in the UE figures. Provided there is a difference greater than plus or minus 5% supported by a new valuers schedule of UE, a change in the UE can be made.

The motion to amend the UE will require a resolution without dissent. See section 38 STA.

It may not win any friends, but if there is a dissenting vote at the General Meeting, an application to the State Administrative Tribunal (SAT) can be made.

Shane White Strata Title Consult E: shane.white@stratatitleconsult.com.au

This post appears in the November 2023 edition of The WA Strata Magazine.

Question: In WA, can a strata council member vote at a regular council of owners meeting (not AGM) if they are unfinancial? The WA legislation doesn’t seem clear.

Answer: If you are unfinancial and get elected to council, you have a vote the same as any other council member.

The conditions on who can vote are limited to the following:

At an AGM or EGM if you are not “financial” [entitled], you cannot vote unless the motion requires a unanimous resolution or a resolution without dissent.

You cannot vote on motions requiring an ordinary resolution or special resolution or nominating anyone else to be elected to the council if you are not financial. See section 120(2)(a) and (b) Strata Titles Act (STA).

You can, however, still be unfinancial but be nominated to council by someone else who is financial.

If you are unfinancial and get elected to council, you have a vote the same as any other council member.

All voting at council meetings where decisions are made are passed by a simple majority vote.

See Schedule 1 Governance by-law BL8(1)

8. Meetings of council

At meetings of the council, all matters must be determined by a simple majority vote.

Unless section 134 STA applies.

134. Performance of restricted council functions in general meeting

If, by ordinary resolution of a strata company, the council of the strata company is prohibited from performing a function, the function may be performed by the owners of lots in general meeting of the strata company.

Or section 135(1) applies.

135. Functions and constitution of councils

The functions of a strata company, subject to this Act and to any restriction imposed or direction given by ordinary resolution, are to be performed by the council of the strata company.

A member of the council can only appoint another owner to take their place at a council meeting.

See Schedule 1 Governance by-law BL8(3)

A member of a council may appoint an owner of a lot, or an individual authorised under the Strata Titles Act 1985 section 136 by a corporation which is an owner of a lot, to act in the member’s place as a member of the council at any meeting of the council.

After some of the meetings that I have heard about going to the Tribunal, the key takeaways are:

Have a list of who is financial before the AGM commencing.

Ensure all owners are fully informed about the voting requirements for the resolutions being voted on.

That you record a list of names / Lot numbers that voted for or against the motion.

Check who is nominating people to be elected to the council.

Maintain a list of the nominees for election, whether you had to have a ballot and the results.

All ballot papers need to be retained as records of the strata company.

Hopefully, this will avoid nominations from people who are unfinancial and not entitled to nominate others.

Shane White Strata Title Consult E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #656.

Question: What decisions must be voted on by the strata company? Are the annual budget and by-laws the only regular items that need a vote? Is everything else at the discretion of the COO?

What decisions must be voted on by the strata company, and what decisions can be taken by the council of owners? I understand the strata company must approve the annual budget, the items in the budget, and the contribution amounts. Also, do we need a vote of the strata company if we want to add, amend or withdraw by-laws?

For example, can the council of owners agree to an arrears collections policy and then start using that method when arrears come up? It would be good to let owners know what that collections policy is, but do we need their approval?

Are the annual budget and by-laws the only regular items that need a vote, and everything else is at the discretion of the COO?

Answer: The Act is clear about the function of the council of the strata company.

The Strata Titles Act 1985 as amended 2018 is clear what the function is of the council of the strata company – see section 135:

135. Functions and constitution of councils

The functions of a strata company, subject to this Act and to any restriction imposed or direction given by ordinary resolution, are to be performed by the council of the strata company.

The council of a strata company must be constituted and perform its functions in accordance with this Act and the scheme by-laws.

On an election of the council at a general meeting of the strata company —
1. a person who is entitled to vote in the election and who is present in person or by proxy at the meeting may demand that the votes in the election be counted by unit entitlement of the lots; and
2. if no such demand is made, the votes in the election are to be counted by number

1 of the members of the council of a strata company must hold office as the chairperson of the strata company.

As Section 135 (1) says – subject to this Act and to any restriction imposed or direction given by ordinary resolution – all functions of the strata company are to be performed by the council.

Section 137 describes the general duties and conflicts of interest by council members – and we recommend council members are aware of this section of the Act as it stipulates quite clearly what is being expected by an elected council member:

137. Council members: general duties and conflicts of interest

This section applies to a person who is —
1. a member of the council of a strata company (including when acting as an officer of the strata company); or
2. an individual authorised under section 136(2) by a corporation to perform the corporation’s functions as a member of the council, or an officer, of a strata company.

A person to whom this section applies —
1. must at all times act honestly, with loyalty and in good faith in the performance of functions as a member of the council or an officer of the strata company; and
2. must at all times exercise the degree of care and diligence in the performance of those functions that a reasonable person in the person’s position and the circumstances of the strata company would reasonably be expected to exercise; and
3. must not make improper use of the person’s position —
  1. to gain, directly or indirectly, an advantage for the person or any other person; or
  2. to cause detriment to the strata company.

A person to whom this section applies —
1. must inform the council in writing of any direct or indirect pecuniary or other interest that the person has that conflicts or may conflict with the performance of a function as a member of the council or, if applicable, as an officer of the strata company; and
2. must do so as soon as is practicable after the person becomes aware of the relevant facts; and
3. in the case of a member of the council, must not vote on a matter in which the member has an interest required to be disclosed under paragraph (a).

Subsection (3) does not apply to an interest arising solely from the fact that the member is the owner of a lot in the scheme

In case there is at any time no council or insufficient members of the council, the Strata Titles Act has a provision that the functions of the council may be performed by the owners of the lots in general meeting of the strata company.

Regarding the specific example of introducing and adopting a debt collection policy, we believe the council can only introduce a policy if the strata company by-laws provide for the council to introduce rules, etc., in relation to debt collection. If there is no such by-law, we recommend that all owners adopt any debt collection policy in a general meeting or by ordinary resolution outside a meeting. Section 100 of the Strata Titles Act provides provisions in relation to administrative and reserve funds and contributions as well as what the strata company is empowered to do in case owners are not paying their levy contributions when they are due and payable.

We also refer you to the following provisions of the Strata Titles Act in relation to what has to been brought up at an Annual General Meeting – See section 127:

127. Annual general meetings of strata company

A strata company must hold an annual general meeting once in each 12 month period and not more than 15 months after its previous annual general meeting.

Subsection (1) does not apply to a strata company for a 2-lot scheme but a strata company for a 2-lot scheme may make by-laws having the same effect as subsection (1).

The following matters must be included as an item of business on the agenda for each annual general meeting of a strata company (including the first annual general meeting) —
1. election of council members;
2. consideration of accounts;
3. the presentation of copies of certificates and schedules for the insurance required under this Act, current as at the date of the meeting.

All business transacted at an annual general meeting other than that referred to in subsection (3) is taken to be special business.

So, besides the adoption of the annual budget and any adoption of proposed by-laws – at an Annual General Meeting, the owners will need to elect the council, accept the financial statements (accounts) of the past financial year and also obtain a resolution in relation to the building insurance.

Also, there are many other resolutions the council does not have the power to make, such as raising levy contributions, approving lot alterations, expenditure over a certain limit as prescribed, etc. The council is advised to seek legal advice if it is unsure when to obtain a resolution from all the owners. The standard by-laws further stipulate the powers of the secretary and the treasurer, so consulting the applicable by-laws for the strata scheme is also recommended.

Marietta Metzger magixstrata E: marietta@magixstrata.com.au P: 08 6559 7498

This post appears in Strata News #654.

Question: If the COO decision making process is conducted via email, how should the vote be conducted?

When the council of owners (COO) are trying to come to a consensus on an issue, it is my understanding that consensus should be achieved via a majority vote by the COO members.

How should this vote be conducted if communication between the COO members is via email:

How many days should members be given to vote?

Can the chairperson put a time limit on when votes must be submitted?

If a member never submits their vote to the chairperson, has the member abstained from voting? If the COO comprises four members and two vote yes and two don’t respond, is that a majority yes vote?

Answer: The council should come together and agree on a process and timeframe for making urgent and non-urgent decisions with time frames for each.

Yes, for the council of owners, a vote is achieved by a simple majority count. Schedule 8 of the Governance By-Laws advises:

8. Meetings of council

At meetings of the council, all matters must be determined by a simple majority vote.

The council may —
1. meet together for the conduct of business and adjourn and otherwise regulate its meetings as it thinks fit, but the council must meet when any member of the council gives to the other members not less than 7 days’ notice of a meeting proposed by the member specifying in the notice the reason for calling the meeting

You will see from the excerpt that the council has the ability to regulate its meeting as it thinks fit. Best practice, however, would suggest that this vote is in writing. The voting system, whether it is electronic or by other means, must enable votes to be cast in a manner designed to protect the integrity of the voting system. Therefore, I do suggest the council come together and agree on a process and timeframe for making urgent and non-urgent decisions with time frames for each. If a vote is not cast, this is considered an abstain and yes, if there are four council of owners and only two vote, you can proceed with the vote of the two. You may, however, want to formally advise all council of owners that a non-vote will be counted as an abstain.

Jamie Horner Empire Estate Agents E: JHorner@empireestateagents.com P: (08) 9262 0400

This post appears in Strata News #651.

Question: A lot owner disagrees with online voting. We have proceeded down this path and he now wishes to halt the process and begin again with an in person meeting. Can we continue with the online discussion and voting process?

The majority of our council agreed to appoint new strata management via discussion in an online thread and then a vote. One of our members is very traditional, therefore, unhappy with the online voting process and has called a meeting. He believes we should stop the discussion and the voting already in progress.

We have to work within the strata regs but does this override an already agreed process? Can we continue with the online discussion and vote?

Answer: If an idea is proposed and approved by the majority, that is democracy. Move on and work with the majority.

In looking at the preliminary details and the situation described, I can respond with the following.

The Strata Titles Act 1985 (STA) changed on 1 May 2020.

Information on voting can be found in sections 120 to 134 of the STA.

From the details provided, a “majority” vote by the council of owners decided to have an online vote to resolve the issue of voting for a new strata manager.

Everyone is entitled to an opinion and, like noses, everyone has one.

If an idea is proposed and approved by the majority, that is democracy. Move on and work with the majority.

The new changes to the STA section 120 mean that “a proposed resolution can be put to the members of a strata company” either (3)(a) at a general meeting or 3(b) outside of a general meeting.

Majority votes at a general meeting can only be voted on by a person who is “entitled” to vote. The word “entitled” used in the STA could have been made simpler and stated as “financial”.

If you are “entitled”, this means you are “financial”. If you are unfinancial, you are not entitled to vote.

By looking at the other strata legislation Strata Titles General Regulations 2019 (STGR) to be read in conjunction with the STA we find the following:

Section 120(8)(b) STA: Voting

The voting system, whether it is electronic or by other means, must —
1. enable votes to be cast in a manner designed to protect the integrity of the voting system; and
2. comply with any requirements specified in the regulations.

Regulation 89 STGR: Voting

For the purposes of section 120(8)(b), if a vote is to be taken outside of a general meeting, the notice of the proposed resolution must specify the following —

how the vote will be conducted;

how a vote may be submitted;

the closing date for submitting a vote;

how the owner of a lot will know their vote has been cast;

how the results of the vote will be published.

One method of electronic voting that comes to mind is “Strata Vote” but there are many other applications that could be used.

It is important to ensure that you have provided proper notification of the electronic meeting and the agenda or resolution required to be voted on; when the voting is going to open and when it will close. See section 121 STA.

Also refer to section 123 Resolutions

For an Ordinary Resolution see section 121(7)(a) and (b):

Voting period

A resolution of a strata company is an ordinary resolution if —
1. for a resolution passed other than at a general meeting, 14 days’ notice of the terms of the proposed resolution is given to each member of the strata company before voting on the resolution opens; and
2. it is passed when counted as required under section 122 (1)(c) —
  1. by number — by more than 50% of the number of lots for which votes are cast; or
  2. by unit entitlements — by more than 50% of the sum of the unit entitlements of the lots in the scheme for which votes are cast.

Note for this subsection:

For an ordinary resolution, the question is determined against the resolution on an equal number of votes, whether counted by number or by unit entitlements.

Shane White Strata Title Consult E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #646.

Question: Can the chair request a show of hands before calling a poll vote to see if a poll vote is necessary?

If a poll vote is called for by an owner for motions and for the election of the strata council, can the chair request a show of hands first to see if a poll vote is necessary?

Can a written request for a poll vote be added to an AGM motion from an absentee owner? Or does the owner have to be present at the meeting to call the poll vote?

Answer: A vote by unit entitlement can be called by anyone prior to the motion being voted on.

A poll vote is a vote counted by entitlement. It’s a term we use frequently within the industry, but it’s not referenced in the legislation.

A vote by unit entitlement can be called by anyone prior to the motion being voted on. That can be in writing before the AGM commences. If an owner would like all the motions determined by a poll vote, they can write in and do so. That is an option.

You can’t have a show of hands prior to moving to a poll vote. If a proxy or an owner elects that the motion is to be determined by unit entitlement, that motion must be determined by unit entitlement and the strata and you should record the the way the lots vote. That requires an extra administrative duty when it comes to the minute taking.

Scott Bellerby B Strata E: scott.bellerby@bstratawa.com.au P: 08 9382 7700

This post appears in the March 2023 edition of The WA Strata Magazine.

Question: The small number of commercial lots in our building are outnumbered by the residential lots. Decisions are not made fairly. What can the commercial residents do?

Our building has a small number of commercial shops and a larger number of residential lots. Our council of owners members are all residential lot owners, and use this power to harass the commercial shops.

There is continual conflict about common areas between the residents and the shops.

Shops have brooms, mops, buckets, boxes, old oil from fryers, etc, and although these items are kept neat and tidy, commercial residents constantly receive emails demanding these items be removed. However, residential residents also store multiple items such as furniture under common area stairs and pot plants on common area decks.

Common property, exterior, windows, doors etc, in the residential areas are being constantly renovated while the commercial common areas are always last on the list.

This ongoing aggravation causes angst for all shops and impedes the ability to run a business. What can the commercial residents do?

Answer: How involved have the owners of the commercial lots been in the decision making processes? Do they attend general meetings or nominate to sit on Council?

My first question would be, whether you are a tenant of the commercial lot, or the owner? As an owner is a tenant in common, they are able to contribute towards the decisions being made by the Strata Company.

How involved have the owners of the commercial lots been in the decision making processes? Do they attend general meetings or nominate to sit on Council?

The powers and duties of the Strata Company must, subject to any restriction imposed or direction given at a general meeting, be exercised and performed by the Council of the Strata Company.

Decisions as to the expenditure of funds are in most cases approved at a general meeting of the Strata Company. If the commercial lot owners are unwilling (or uninterested) in attending, they are able to authorise a person who is a tenant to act as their proxy. This could provide an opportunity for the tenant to contribute to the meeting and understand why certain decisions are being made and vote accordingly in the best interests of the lot owner they’re representing.

The second question would be, are there any terms within the lease agreement between the lot owner and the tenant with relation to common property? Is there any agreement in place between the lot owner and the Strata Company in regards to the areas being used for the storage of goods – either in the residential areas or the commercial?

Thirdly, the question would be, are you aware of whether there are any bylaws above the standard Schedule 1 and Schedule 2 bylaws, which apply to the scheme? These may incur rights and/or responsibilities over the usage of common areas.

Section 45 of the Act outlines who must comply with the bylaws as if they were deed signed by each person. This includes owners, occupiers or lessees and all invited persons to the scheme.

In essence, it’s important that you educate yourselves as to the responsibilities of the Strata Company and each party involved; in accordance with the Strata Titles Act & Regulations, scheme bylaws – and any other written law, which includes the amended Work Health & Safety Act 2020.

If the bylaws state no items are to be left on common property without authority from the Council of the Strata Company – then no items are to be stored on common property (unless properly authorised), and everybody must adhere to this direction. Even if a lot owner were to be granted Exclusive Use over a portion of common property, they still have obligations to adhere to.

The final consideration is insurable risk. What is the potential risk of damage to person/property by each of the items which have been left on common property. Flammable hazard? Trip or slip hazard? I would concur such items are not to be stored on common property.

If you find that no amicable resolution with the Strata Company is possible, the owner or occupier may apply to the State Administrative Tribune to have the matter heard – but ensure you are across all of the facts before taking this measure, and you may wish to seek legal advice to assist you with your application.

ESM Strata Team ESM Strata E: esm.support@esmstrata.com.au P: 08 9362 1166

This post appears in the December 2022 edition of The WA Strata Magazine.

Question: A lot owner couple in our strata own seven of the 21 units between them. When voting for positions on the Council of Owners, do they get seven votes? When the vote is based on unit entitlement, is the entitlement for each unit used in the vote?

Answer: The couple would be entitled to a vote for each lot they own excluding any of their lots that are not financial.

This couple would be entitled to a vote for each lot they own excluding any of their lots that are not financial (unless the vote is on a unanimous resolution or resolution without dissent- Section 120. This is unless any first mortgagee decided to vote as their voting right would take precedence. This includes a vote for the election of council of owners.

If the number of nominees to the council equals the number of positions then no vote is required and the nominees are automatically elected. If the number of nominees exceeds positions, then a ballot is held. The chairman must then provide a blank form to each person entitled to vote for use as a ballot form. A correct ballot form must contain the names of candidates in which the person is voting for equal to the number of available positions for the council.

It is important to note that if the lots are in both their names, they must have a proxy in place appointing one of them to represent the lot at a general meeting, even if they are both in attendance.

Equally, if a demand has been made that the vote is counted by the number of unit entitlements, the couple’s unit entitlements for each lot under ownership that are entitled to vote would be taken into consideration section 122(2).

Luke Downie Realmark E: ldownie@realmark.com.au P: 08 9328 0999

This post appears in the December 2022 edition of The WA Strata Magazine.

Question: If an apartment is sold but hasn’t settled yet, can the developer still use his vote on that apartment?

Answer: Yes, if the developer is the owner of the unit at the time of the vote.

Jordan Dinga Abode Strata E: abode@abodestrata.com.au P: 08 9368 2221

This post appears in Strata News #605.

Question: Can an owner abstain from voting on an issue listed on the AGM Agenda as requiring ‘Resolution without Dissent’? How is this done? Can an owner just be absent from the meeting?

Answer: An Owner can choose to abstain on an Annual General Meeting agenda item or not attend the meeting.

Yes, an Owner can choose to abstain on an Annual General Meeting agenda item or not attend the meeting. It means they are choosing to not vote on the proposed item. The options for an Owner are a yes, no or abstain vote.

If an owner chooses to be absent or abstains from a Resolution without dissent vote it can still pass as a Resolution without dissent, however, the motion will not pass if a ‘no vote’ is cast. Section 123 notes that it will pass provided a minimum of 14 days’ notice is provided of the proposed resolution before voting, and no vote is cast against the resolution. Therefore a abstain vote has no impact on a resolution without dissent.

Section 120 also notes that in regards to voting periods, for a resolution without dissent there is an additional period of voting that must be taken into account. The period for voting must be in writing within 28 days after the meeting (unless the regulations specify otherwise), this means that an Owner in the scheme can also choose to cast a vote 28 days after the meeting.

Jamie Horner Empire Estate Agents E: JHorner@empireestateagents.com P: (08) 9262 0400

This post appears in the August 2022 edition of The WA Strata Magazine.

Question: Can a poll vote be written on a motion to be submitted on the agenda for the AGM or is it required to be submitted orally or in writing at the meeting.

Answer: A ‘demand that a vote be counted by the number of unit entitlements of the lots for which votes are cast’ can be made.

Since the amendments to the Strata Titles Act 1985 that came into effect on 1st May 2020, the term ‘poll vote’ isn’t actually a defined term anymore. (Section 122)(3) of the amended Strata Titles Act 1985 now applies whereby ‘a demand that a vote be counted by the number of unit entitlements of the lots for which votes are cast’ can be made.

If the vote is being taken at a general meeting, then a demand for a count by the number of unit entitlements of the lots can be made either orally or in writing before the motion is put to the vote (i.e. a demand cannot be made after voting starts).

If the vote is being taken outside a general meeting pursuant to (Section 120(8)(b) and Regulation 89 of the Strata Titles General Regulations 2019) then a demand for a count by the number of unit entitlements of the lots can occur when the votes are being cast.

A demand for a vote counted by the number of unit entitlements may only be withdrawn by the person/s who made the demand.

It should also be noted that Section 135(3) of the Strata Titles Act 1985 applies if a demand for a count by the number of unit entitlements is made during an election of the Council of Owners.

It should also be noted that ‘a demand that a vote be counted by the number of unit entitlements’ is not a secret vote – the meeting chairperson will usually declare the number of unit entitlements of the respective lots entitled to vote before the motion is voted upon, and will usually mention the votes cast when declaring the result of the voting.

Andrew Chambers Chambers Franklyn Strata Management E: andrew@chambersfranklyn.com.au P: 08 9200 4200

This post appears in Strata News #569.

Question: Can you explain Section 122 of the Act which states that a voting member can demand a vote be counted by unit entitlement before the resolution is put to the vote.

Section 122 of the strata titles act states that a voting member can demand a vote be counted by unit entitlement before the resolution is put to the vote. It also states that the demand can only be withdrawn by the person making the demand. Does the withdrawal also have to occur before the resolution is put to the vote, or can the demand be withdrawn during or after? The wording is not clear.

Answer: When the motion is about to be put to the vote, an owner or their proxy can request that the vote be counted by the Unit Entitlements before the request is made by the chairman for a show of hands for a majority vote.

To explain this one clearly, I have included that part of section 122 which applies to a “poll vote”. Section 122 (1)(2)(3) Counting of Votes – Ordinary Resolution

122. Counting of votes

Votes are to be counted (and recorded) as follows —
1. for a unanimous resolution or a resolution without dissent, the votes must be counted by the number of votes cast;
2. for a special resolution, the votes must be counted both by the number of votes cast and by the number of unit entitlements of the lots for which votes are cast;
3. for an ordinary resolution, the votes must be counted by the number of votes cast unless any person entitled to cast a vote demands that they be counted by the number of unit entitlements of the lots for which votes are cast, in which case, they must be counted in that manner.
A demand that a vote be counted by the number of unit entitlements of the lots for which votes are cast can be made —
1. if the vote is being taken at a general meeting, orally or in writing before the resolution is put to the vote; and
2. if the vote is being taken outside of a general meeting, when the vote is cast.

Such a demand may only be withdrawn by the person who made the demand.

When the motion is about to be put to the vote, an owner or their proxy can request that the vote be counted by the Unit Entitlements before the request is made by the chairman for a show of hands for a majority vote.

The demand for a poll vote can only be withdrawn by the person who made the demand.

It is important to note that once the call for a show of hands is made and the vote commences, the option to have a poll vote lapses. (“before the resolution is put to the vote“)

A call for a poll vote can be withdrawn before the voting commences otherwise the voting procedure for a poll vote would have to be followed.

Shane White Strata Title Consult E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #548.

Question: My unit is at the front of a holiday resort. 80% of the units are owned by one company. The residential owners are always out-voted at AGMs. What can we do?

I purchased a unit in a holiday resort. We have residential owners in the front of the complex and owners who rent out their units for holidaymakers in the back resort part of the complex.

The resort has been purchased with 80% of the units being owned by one company. When it comes to voting at AGMs, the residential owners are always out-voted due to the majority of votes belonging to one person. Our strata rates are extremely high.

What can we do about this? We feel it is unfair and only benefits the resort.

Answer: Where you have a “mixed” strata, it is not unusual to have in your by-laws or management statement a by-law splitting the levies into 3 components.

The act is clear. Section 120 – Voting states that the owner of each lot in a strata title scheme is entitled to one vote. Therefore the company that has purchased a number of the resort lots would have the number of votes equalling the number of lots owned.

I can appreciate your frustration of being out-voted. That said, where you have a “mixed” strata, it is not unusual to have in your by-laws or management statement a by-law splitting the levies into 3 components. One detailing what the whole complex will pay as levies for shared services, then a levy just for the resort side and thirdly a levy just for the residential side. The idea of this is to create equality in the running expenses of the strata complex.

If that’s not the case, the council of owners should address this issue with the resort company. Failing that, it may need an application to the State Administrative Tribunal.

Brian Rulyancich StrataTAC E: strata@stratatac.com.au P: 0428 970 067

This post appears in the February 2022 edition of The WA Strata Magazine.

Question: How hard it is to get an application for the amendment of Unit Entitlement through SAT? The lot owner who benefits from the division is opposed to a voluntary re-evaluation.

What is the situation when Unit Entitlement are disproportionate to the value of the strata shops in a complex as described in section 37(2) of the STA.

The lot owner who benefits from the division is opposed to a voluntary re-evaluation. We are wondering how hard it is to get an order through SAT in WA to have the complex revalued for the purpose of UE correction.

If we end up pursuing the matter through SAT, what evidence would need to be presented? If it was shown that one shop has half the UE of another shop that is double the size with no other difference in aspect, would that be enough to get an order for the strata to pay for revaluation or would we have to pay for a revaluation of the whole complex?

Our strata manager is saying that she does not know of a successful application for the amendment of UE through SAT. The disproportion happened 20 years ago when a large shop was split into 3 shops and they simply divided up the UE of that shop between the smaller shops. I believe they should have had the whole lot revalued at that time.

Answer: There have been many successful applications.

The “Requirements for registration of amendment of schedule of unit entitlements” is contained in section 38 of the STA.

It is possible to lodge an application to the Tribunal (SAT) to have the Unit Entitlements (UE) amended and there have been many successful applications.

The main focus is the evidence that would require a Licensed Valuer to submit a valuation report and a new Schedule of UE done.

It would be up to the Valuer to assess the UE points for all the Lots in the strata scheme.

It would appear that you would be unlikely to get the strata company to fund the cost of a Valuer to enable you to lodge the application.

You may be able to request a reimbursement of that cost in your SAT application, but I don’t know if that would be successful.

Shane White Strata Title Consult E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #530.

Question: How have voting procedures and vote counting at a general meeting changed with the amendments to the Act?

Is the following clause 8 in Schedule 1 by-law 12 still the case following the new strata title amendments?

Proceedings at general meetings

Unless a poll be so demanded a declaration by the chairman that a resolution has on the show of hands been carried is conclusive evidence of the fact without proof of the number or proportion of votes recorded in favour of or against such resolution.

In LookUpStrata’s recent article on Votes and Voting, you quote clause 11 from the old Strata Titles Act (STA). Schedule 1 Bylaw 12 Clause 11 states:

Proceedings at Special Meetings

“In the case of equality in the votes whether on a show of hands or on a poll, the question is determined in the negative.”

Is this still the case in the amended STA? And does this apply to Council of Owners meetings too?

Answer: The only times that a request for voting to be counted as per unit entitlements “may be requested” is for a Special Resolution or an Ordinary Resolution.

The amendments to the Strata Titles Act 1985 were approved on 20 May 2020.

Articles written prior to the amendments to the Act were correct when they were written.

A careful study of the amendments to the Act indicate that all Schedule 1 By-laws from By-law 11 to 15 were deleted and are now included into the Act itself.

“Poll” voting is now included in the Act and hidden away in section 122 where it is not referred to a POLL vote but expressed as vote that is demanded to be counted by the unit entitlements .

122. Counting of votes

Votes are to be counted (and recorded) as follows —
1. for a unanimous resolution or a resolution without dissent, the votes must be counted by the number of votes cast;
2. for a special resolution, the votes must be counted both by the number of votes cast and by the number of unit entitlements of the lots for which votes are cast;
3. for an ordinary resolution, the votes must be counted by the number of votes cast unless any person entitled to cast a vote demands that they be counted by the number of unit entitlements of the lots for which votes are cast, in which case, they must be counted in that manner.

A demand that a vote be counted by the number of unit entitlements of the lots for which votes are cast can be made —
1. if the vote is being taken at a general meeting, orally or in writing before the resolution is put to the vote; and
2. if the vote is being taken outside of a general meeting, when the vote is cast.

Such a demand may only be withdrawn by the person who made the demand.

The only times that a request for voting to be counted as per unit entitlements “may be requested” is for a Special Resolution or an Ordinary Resolution.

Careful consideration must be given to the practicality of such a request as it may extend the meeting to several hours.

It is up to the Chairman to make the call that the vote is carried on the basis of the number of votes received. It would be good meeting practice to record the number of votes in favour.

There are more current articles available about this topic.

Voting on resolutions can now be found in sections 120 to 126 inclusive.

Shane White Strata Title Consult E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #518.

Question: If I own 3 units, what are my voting rights at an AGM or any meeting?

Are you able to advise me if an owner in a Survey Strata Title’s Village owns 3 units what is their voting rights at an AGM or any meeting do they have the right to have three votes? the act is a bit confusing so we want to be sure to advise the owner it is a vote per property that the owner would have 3 votes or it is a vote per owner would be one vote.

Answer: As with any strata scheme, if you have 3 Lots you have 3 votes.

As with any strata scheme, if you have 3 Lots you have 3 votes.

The Unit Entitlement (UE) values for a strata scheme are based on the capital improved value whereas the in a survey-strata scheme the UE is based on the unimproved land value.

When voting an owner may request that the counting of any votes is done by adding up the UE value of each Lot prior to the vote being put. In most instances the voting would be done by a show of hands unless a “Poll Vote” has been requested.

The counting of poll votes can be very time consuming especially for very large strata schemes.

Shane White Strata Title Consult E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #511.

Question: Is the vote of a Chairperson worth more than other votes? Does the Chairperson have a casting vote?

Is the vote of a Chairperson (at either a General Meeting or a Council of Owners meeting) worth more than a non-Chairperson’s vote?

Does a Chairperson (at either a General Meeting or a Council of Owners meeting) have a casting vote, if there are equal votes on either side?

Answer: At a general meeting, all votes are equal regardless of the office any owner may have been be elected to

Under the Strata Titles Act (WA) 1985, I’m pleased to confirm that when it comes to voting at a general meeting, the chairpersons vote is not worth more than any other owner within the strata scheme – all votes are equal regardless of the office any owner may have been be elected to.

That said though, care needs to be taken in the following circumstances:

For an Ordinary Resolution (a simple majority vote) – the meeting needs to know if the chairperson is only representing their own lot at a meeting, or if they happen to be holding a proxy/proxies of other owners (i.e. they may in fact be casting more than one vote as a representative of their own and of other lots, but a chairpersons vote itself is not a ‘weighted’ or ‘casting’ vote).

For a Special Resolution, the voting will be according to Unit Entitlement, meaning some votes cast a general meeting are not simple equal votes like those cast for an Ordinary Resolution. A Special Resolution should be detailed as such in the meeting agenda for a general meeting.

An Ordinary Resolution (a simple majority vote) applies at all Council Meetings (i.e. Unit Entitlement does not apply at Council meetings – it’s always one vote per Council member or proxy holder).

Under the Strata Titles Act (WA) 1985, I’m also pleased to confirm that the chairperson does not have a ‘casting vote’. In the event of a tied or equal vote the result is always in the negative (i.e. the motion fails – it is not passed) so it’s important to frame motions in the agenda accordingly (i.e. “To resolve to…” or “To resolve not to…”).

The relevant sections of the Strata Titles Act (WA) 1985 are Sections 120 to 138 (inclusive). The relevant regulation of the Strata Titles General Regulations 2019 (WA) is Regulation 89.

Andrew Chambers Chambers Franklyn Strata Management E: andrew@chambersfranklyn.com.au P: 08 9200 4200

This post appears in Strata News #505.

Question: Our strata is made up of both residential apartments and a resort. Every decision is squashed by the majority vote of 80% in the resort by one company.

Our strata is made up of both residential apartments and a resort. My unit is in the residential part with a resort that backs onto it.

The resort units are owned by individuals but 80% is owned by the company who purchased the resort.

The residential units are all owned individually.

The problem is the very high strata fees the residential owners pay. Each time we want to discuss having these fees reduced, the majority vote of 80% in the resort by one company, overrides all residential votes.

No matter what we want, if it doesn’t suit the majority owner – this is voted out.

This is so frustrating, as it is as though the residential owners have no say whatsoever unless it agrees with the majority owner’s vote.

Is there anything we can do to balance this out where the residential owners have a voice that counts?

Answer: With the introduction of the Community Titles Act later this year (2021), hopefully better management plans can be put in place to avoid these conflicts.

These conflicting uses within schemes always generate conflict. With the introduction of the Community Titles Act later this year (2021), hopefully better management plans can be put in place to avoid these conflicts.

Around this particular matter, in the end section 137 details general duties and conflicts of interest regarding a council member. At all times, they have to act honestly and in good faith, take due care and diligence and must not make improper use of their position to benefit. It’s a very tight line that has to be walked around the management of this scheme. Ultimately, if they are one owner, they can only hold one position on the council. So what it really comes down to is working with the residents around the election of the Council of Owners and trying to get good representation on the Council of Owners to be able to have better informative discussion around the management of the scheme. That’s probably all you can really do there.

When you buy into the scheme, you’re presented with the bylaws and you’re presented with the budget. There is an expectation that you do your due diligence when you buy in. In these types of schemes, you do find that the levies are quite high, but they need to be equitable and they need to be apportioned appropriately.

The only advice I can give here is that the reader should try to get better representation on the Council of Owners.

Scott Bellerby B Strata E: scott.bellerby@bstratawa.com.au P: 08 9382 7700

This post appears in Strata News #501.

Question: With the 28 day voting process, if all members had voted pre and at the meeting, does the voting period closes at the end of the meeting?

The WA legislation talks about a 28 day voting period. With the 28 day voting process, if all members had voted pre and at the meeting, does the voting period closes at the end of the meeting?

If, however, not all votes were received but the resolution still passes at the meeting due to the required numbers, are the subsequent votes invalid and recorded although they could not change the resolution?

Answer: If all proprietors have cast their vote, that motion is deemed to be carried at the meeting and the allowance of a further 28 days may not be applicable.

Regarding a Resolution without Dissent, Special or Unanimous Resolutions being a resolution on which every person in the scheme who is entitled to vote is to vote either in person, by proxy or in writing within 28 days after the meeting, generally the process is that the motion stays open as such for voting proceeding the meeting date for a period of 28 days before the motion is effectively “carried”. In the case whereby all proprietors have cast their vote and it has been recorded as such, then it would be my opinion that the motion is deemed to be carried at the meeting and the allowance of a further 28 days may not be applicable.

However, there is no provision in the Strata Titles Act specifically referring to a situation like this, so it is open to interpretation by the wording of the legislation. Given the wording as shown below under Section 121‘s intention as it appears is to have the 28 days period solely for the purpose of proprietors not in attendance to cast a vote, one may reasonably conclude that since all votes have been cast the 28 days is no longer required/applicable to deem the motion as carried. This is up to legal interpretation and possibly depends upon what type of motion is being passed, i.e. termination motion or re subdivision motion, or is it just a simple by-law change or structural application etc? So, it may depend on what section of the Strata Titles Act WA and Regulations WA the motion that’s being sought is governed by. Proper legal opinions should be obtained based on the nature of business being sought to be passed by the strata company would be my advice on how to proceed in events such as this.

STRATA TITLES ACT 1985 – SECT 121

121. Voting period

If a resolution is required to be a unanimous resolution, resolution without dissent or special resolution, the period allowed for voting must be 28 days or, if the regulations specify some other period, that period.

If a vote on a resolution that is required to be a unanimous resolution, resolution without dissent or special resolution is taken at a general meeting —

the voting period opens at the meeting and closes 28 days (or if the regulations specify some other period, that period) after the meeting; and

if, for 1 or more lots, there was no-one present at the meeting in person or by proxy who could cast the vote attached to the lot — written notice of the outcome of the vote at the meeting is given to the owner of each such lot; and

if the vote for a lot was not cast at a meeting, the vote may be cast by written notice to the strata company before the voting period closes.

[Section 121 inserted: No. 30 of 2018 s. 83.]

The information published in this article is of a general nature and should not be construed as legal advice. You should not therefore act in reliance on it without first obtaining specific legal advice.

Kylie Nelson KN Strata Consultancy E: kylie@knstrata.com P: 0401 448 308

This post appears in the July 2021 edition of The WA Strata Magazine.

Question: In a commercial strata situation, how are unit entitlements calculated? Is it a vote per unit owned or a vote per owner?

How are unit entitlements calculated? In a commercial strata situation, how many votes does each owner get? Is it a vote per unit owned or a vote per owner?

I have a property in Western Australia & in our strata there is majority ownership of units by one business entity & the two owners act as though our opinions & expectations do not matter. There are a number of owner operators but the guys who are majority owners are not operators.

Any clarity on this point you could help with would be very greatly appreciated.

Answer: Each lot proprietor has one vote when the vote is taken on a show of hands. If a poll vote is called, each lot proprietor has the same number of votes as the unit entitlements of their lot.

Please note: this response was provided prior to the proclamation of the new strata title amendments.

The Strata Titles Act 1985 (WA) (the Act) does not differentiate between commercial and residential strata schemes, both are subject to the same provisions.

The Schedule 1 by-laws deal with votes of proprietors. By-laws can, of course, be added to, amended and repealed by the strata company (as long as the changes are not inconsistent with the Act). Therefore, the first step would be to check if any by-law amendments have been registered for your strata scheme (registered amendments can be located in the Schedule of Encumbrances included in the strata plan).

However, most schemes operate in accordance with the standard Schedule 1 by-law 14 of the Act which states:

Schedule 1 by-law 14 Votes of Proprietors

On a show of hands each proprietor has one vote.

On a poll the proprietors have the same number of votes as the unit entitlements of their respective lots.

On a show of hands or on a poll votes may be given either personally or by duly appointed proxy.

An instrument appointing a proxy shall be in writing under the hand of the appointer or his attorney and may be either general or for a particular meeting.

A proxy need not be a proprietor.

Except in cases whereby or under the Act a unanimous resolution or a resolution without dissent is required, no proprietor is entitled to vote at any general meeting unless all contributions payable in respect of his lot have been duly paid and any other moneys recoverable under the Act by the strata company from him at the date of the notice given to proprietors of the meeting have been duly paid before the commencement of the meeting.

Co‑proprietors may vote by proxy jointly appointed by them and in the absence of such a proxy are not entitled to vote on a show of hands, except when the unanimous resolution of proprietors is required by the Act.

On any poll each co‑proprietor is entitled to such part of the vote applicable to a lot as is proportionate to his interest in the lot.

The joint proxy (if any) on a poll has a vote proportionate to the interests in the lot of such of the joint proprietors as do not vote personally or by individual proxy.

It should be noted that the Act defines ‘proprietor’ as follows:

proprietor means the person who is for the time being registered under the Transfer of Land Act 1893 as proprietor of an estate in fee simple or an estate for life in a lot;

To simplify the above by-law as it relates to unit entitlements and this query:

Each lot proprietor has one vote when the vote is taken on a show of hands. Therefore, if you own one lot you have one vote, and if you own five lots you have five votes. This, unfortunately, does mean that if a person/s or entity owns the majority of lots in a scheme, they can have a controlling vote when an ordinary or simple majority resolution is required; and
If a poll vote is called, each lot proprietor has the same number of votes as the unit entitlements of their lot. Therefore, if your unit entitlement is 10 and the total unit entitlement for the scheme is 100, you would have 10 of 100 votes.

Schedule 1 by-law 12 provides for any proprietor present in person or by proxy to demand a poll vote. This is typically used if an owner or a group of owners know their unit entitlement will give them greater voting power than the one vote per lot method. For example, the unit entitlements for three penthouses in a seven-lot scheme may outweigh the unit entitlements for the other four, lower value lots.

It is worthwhile familiarising yourself with this by-law.

Schedule 1 by-law 12 Proceedings at general meetings

All business shall be deemed special that is transacted at an annual general meeting, with the exception of the consideration of accounts and election of members to the council, or at an extraordinary general meeting.

Except as otherwise provided in these by‑laws, no business may be transacted at any general meeting unless a quorum of members is present at the time when the meeting proceeds to business.

One‑half of the persons entitled to vote present in person or by duly appointed proxy constitutes a quorum.

If within half an hour from the time appointed for a general meeting a quorum is not present, the meeting, if convened upon the requisition of proprietors, shall be dissolved and in any other case it shall stand adjourned to the same day in the next week at the same place and time and if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting, the persons entitled to vote and present constitute a quorum. (4a) Sub‑bylaws (3) and (4) of this by‑law do not apply to a general meeting of a strata company referred to in section 50B.

The chairman, may with the consent of the meeting, adjourn any general meeting from time to time and from place to place but no business may be transacted at an adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.

Except where otherwise required by or under the Act, resolutions may be passed at a general meeting by a simple majority vote.

At any general meeting a resolution by the vote of the meeting shall be decided on a show of hands unless a poll is demanded by any proprietor present in person or by proxy.

Unless a poll be so demanded a declaration by the chairman that a resolution has on the show of hands been carried is conclusive evidence of the fact without proof of the number or proportion of votes recorded in favour of or against such resolution.

A demand for a poll may be withdrawn.

A poll if demanded shall be taken in such manner as the chairman thinks fit and the result of the poll shall be deemed to be the resolution of the meeting at which such poll was demanded.

In the case of equality in the votes whether on a show of hands or on a poll, the question is determined in the negative.

The above applies to voting at general meetings, however, it is also important to note that the council of owners is empowered to fulfil the day to day duties and obligations of the strata company subject to any restrictions imposed by the Act or by the strata company at general meetings. Schedule 1 by-law 4 dictates that a person who owns more than one lot shall be deemed to be one proprietor. Therefore, a person or entity that owns multiple lots in the same name can still only fill one position on the council.

Schedule 1 by-law 4 Constitution of the council

In determining the number of proprietors for the purposes of this by‑law, co‑proprietors of a lot or more than one lot shall be deemed to be one proprietor and a person who owns more than one lot shall also be deemed to be one proprietor.

This may provide an avenue for you and the other owners to have some control over the day to day running of the scheme, noting that the council must act in accordance with any restrictions imposed by the Act or by the strata company at general meetings (for example, within the approved budget).

Strata Community Association WA E: admin.wa@stratacommunity.org.au P: 08 9381 7084

This post appears in Strata News #216.

Have a question about how unit entitlements are calculated or something to add to the article? Leave a comment below.

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Disclaimer: The above information is provided solely for general information purposes and should not be taken as constituting legal advice or advice that is specific to your particular circumstances. You may consider seeking independent legal advice to see if the information provided relates to your circumstances.

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