Normally, each unit is entitled to one vote (the possible exception to this relates to non-residential strata schemes) [Strata Titles Act 1988 (SA) s 34(1)].
If there are two or more unit holders for one unit, only one of them, or a proxy appointed by one of them, needs to attend the meeting to vote. If both or all unit holders attend a meeting, only one may vote. If they cannot agree on who will vote, the unit holder whose name appears first on the certificate of title for the unit is the one who may vote [s 34(3)(b)].
Where a unit holder is under a disability, the rights and powers of that unit holder under this Act may be exercised on their behalf by a guardian [s 45(1)]. Thus, a guardian of a person under a disability may vote on behalf of the person.
Disclosure of interest
A person who attends and is entitled to vote at a meeting of a strata corporation, and who has a direct or indirect pecuniary interest in any matter to be voted on at the meeting must disclose the nature of the interest to the members present at the meeting before the vote is taken. Failure to do so is an offence with a maximum penalty of $15 000 [s 34A(3)]. See also Disclosure of interest by a proxy (below).
Unit holders may appoint in writing a 'proxy' or someone to vote for them if they will not be present [s 34(2a)]. The proxy may be another unit holder, a tenant, relative or friend. The strata manager or an employee of the strata manager may also be appointed as a proxy, but if they cease to have these roles, the proxy also ceases [s 34(3c)].
Even if a proxy nomination has been made, a unit holder may attend and vote at meetings on his or her own behalf [s 34(3a)(f)].
How to appoint a proxy
The nomination of a person as a proxy of a unit holder must be [s 34(3a)(a)]:
- sent in writing to the secretary of the strata corporation; and
- specify whether the nominated person is nominated to attend and vote- at all meetings, and in relation to all matters, on behalf of the unit holder, or- only at specified meetings, or in relation to specified matters, on behalf of the unit holder.
Failure to comply with these requirements of section 34(3a)(a) will invalidate the nomination [s 34(3b)].
Sample proxy nomination
I [your full name], the owner of [your unit number], [the strata corporation’s address] appoint [proxy’s full name] of [proxy’s address] to attend and vote at meetings of the strata corporation on my behalf.
This nomination remains effective for 12 months.
Disclosure of interest by a proxy
Declaration of a unit holder's interest
If the proxy is required to vote in a particular way in relation to a matter in which the unit holder has a direct or indirect pecuniary interest (other than an interest that the unit holder has in common with all the holders of the strata units), the nomination must specify the nature of the unit holder's pecuniary interest [s 34(3a)(c)]. In addition the proxy must declare the unit holder's interest before the vote is taken [s 34A(1)(b)]. Failure to declare the unit holder's interest is an offence with a maximum penalty of $15 000.
Declaration of a proxy's interest to the meeting
Similarly, if the proxy themself has a direct or indirect pecuniary interest in any matter to be voted on at the meeting, they must disclose the nature of the interest to the members present at the meeting before the vote is taken [s 34A(3)]. Failure to do so is an offence with a maximum penalty of $15 000.
Declaration of a proxy's interest to the person who nominated them
If a proxy has a direct or indirect pecuniary interest in any matter to be voted on at a meeting (other than an interest that a proxy who is a co-owner has in common with all the other co-owners [s 34A(2)]), they must, if it is practicable to do so, disclose the nature of the interest to the person who nominated them before the vote is taken. If this is not practicable, they must disclose the nature of the interest to the person who nominated them as soon as practicable after the vote is taken. Failure to do so is an offence with a maximum penalty of $15 000 [s 34A(1)(a)]
Conditions on a proxy
A proxy nomination may specify conditions [s 34(3a)(b)] for example, how the unit holder requires the proxy to vote on certain matters.
Period of proxy nomination
A proxy nomination is effective for a period of 12 months or such lesser period as may be specified in the written notice of nomination [s 34(3a)(e)]. However, the nomination may be revoked earlier at any time by the unit holder, by giving written notice to the secretary [s 34(3a)(d)]. Any contract or agreement purporting to prevent revocation is unenforceable [s 34(3a)(d)].
An attorney as a proxy
A person who has been appointed to exercise a general power of attorney or an enduring power of attorney may vote on behalf of a unit holder. Note that, if a person is appointed by general power of attorney specifically for the purpose of attending and voting at meetings, or specified meetings, of the strata corporation, the appointment is (despite any provision of the Powers of Attorney and Agency Act 1984 (SA) or the terms of the general power of attorney) only effective for a period of 12 months. The unit holder can, of course, specify a lesser period in the power of attorney, or revoke the power of attorney at any time [Strata Titles Act 1988 (SA) s 34(3d)].
If a general power of attorney appoints a body corporate manager specifically for the purpose of attending and voting at meetings, or specified meetings, of the strata corporation, a copy of the general power of attorney form must be provided to the secretary of the corporation before the meeting, or the first of the meetings, to which it relates [s 34(3e)].
Proxy forms must be available for inspection
The secretary of the corporation must ensure that a copy of each written proxy nomination and each general power of attorney form appointing a body corporate manager is available for inspection at a meeting before any matter is voted on. Failure to do so may incur a maximum penalty of $500 [s 34(3f)].
A unit holder may exercise an absentee vote by giving the secretary of the strata corporation written notice of the proposed vote at least six hours before the meeting [s 34(4)].
Right to vote
Normally, all voters must be paid up members of the corporation; however non-financial members of the corporation can vote for or against a motion requiring a unanimous resolution [s 34(7)].
Application to dispense with a vote
If a unit holder is under a disability or cannot be found, the strata corporation or any other person with a proper interest in the matter may apply to the Magistrates Court (minor civil action jurisdiction) to dispense with the need to have the unit holder vote [s 45(2)].
A written ballot may be demanded by a unit holder (or a proxy of a unit holder) attending a meeting [s 34(5)]. The person presiding at a meeting has the power to manage a written ballot as they think fit [s 34(6)].
Remote communication and written ballots
It is not clear how a person attending a meeting via remote communication such as telephone or video-link [s 33(11); Strata Titles Regulations 2018 (SA) 15(4)] may participate in a written ballot. As remote communication is only allowed if provided for in the corporation’s articles, or if approved and arranged by the secretary, if the situation of a written ballot is not covered in the articles or the arrangements, this may preclude someone attending via remote communication from participating in a written ballot. However, the person presiding at a meeting has the power to manage a written ballot as they think fit [Strata Titles Act 1988 (SA) s 34(6)].
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