ACT Property Law - What Does Joint Ownership Mean?

[Ted Sherwood]

We have a lot in Community Title Scheme in the ACT. The governing act (the Community Title Act 2001) provides that if a lot is 'owned' by more than one person, then each part-owner is a member of the body corporate. For meeting purposes, I need to know who the members are. Some lot owners own the lot on their own, so that means they are a member. But the majority own their lot either as joint owners or tenants in common. Therefore the question: is a joint owner - either type an 'owner' in their own right (and therefore, a member separate to the membership of their 'partner' in the lot) under property law?

 

[James D. Ford - Solicitor]

Hi Ted, are you a member of the Body Corporate Committee? Do you have an appointed Body Corp manager?

What is the reason for the meeting you are proposing?

There will be a register of all lot owners, kept by the BC manager.

1 property = 1 lot = 1 shared membership and 1 vote in Body Corp matters...

Joint lot owners can both be invited to a BC meeting, but they only have 1 vote between them.

Kind regards

 

[Ted Sherwood]

Thanks for the quick response James.
See answers below.

Hi Ted, are you a member of the Body Corporate Committee?
There's no Committee, so the entire body corporate is the decision making body for all decisions (except those delegated to the manager.)
Do you have an appointed Body Corp manager?
Yep, but they are hopeless, so we arrange meetings ourselves.

What is the reason for the meeting you are proposing?
AGM - but the question applies to all general meetings.

There will be a register of all lot owners, kept by the BC manager.
There are only nine, and we know them all. But, yes, the manager has the register and the official addresses (and the right names).

1 property = 1 lot = 1 shared membership and 1 vote in Body Corp matters...
Yep, this is the way we have been doing it. Eminently reasonable. But I recently reread the Act, and sections 32(1) and (2) are the reason for posing the question: (1) Members = owners. (And one member = one vote). (2) "If a lot...is owned by more than 1 person, each part-owner is a member of the body corporate." Hence the question: does joint ownership - of either kind - mean two (or more) 'owners'. If so, then both parties are members, and both parties get a vote. Counter intuitive, and perhaps unreasonable, but...well, you're the lawyer.

Joint lot owners can both be invited to a BC meeting, but they only have 1 vote between them.
Yep, this is the way we have been doing it. Eminently reasonable.
(In addition, though, isn't it the case that if they wish to vote by a show of hands, they have to have lodged a proxy appointing one of them to vote?)



Kind regards

 

[James D. Ford - Solicitor]

Hi Ted,

I believe the following section will explain how co-owners are counted in the voting at general meetings - look for my bold highlighting:

COMMUNITY TITLE ACT (ACT) 2001 - SECT 41
Voting at general meeting
(1) A member of the body corporate may vote personally or by proxy on issues to be decided at a general meeting.

(2) Voting may be by show of hands but, if a poll is required, voting is in accordance with the constituent documents of the body corporate.

(3) Co-owners may vote by proxy jointly appointed by them and, without such a proxy, they may not vote on a show of hands (except on a motion for a unanimous resolution).

(4) However, a co-owner may require a poll and on the poll a co-owner is entitled to voting rights proportionate to the co-owner's interest in the lot.

(5) If a mortgagee is in possession of a lot under a mortgage, the mortgagee is entitled to exercise the voting rights of the lessee, to the exclusion of the rights of the lessee.

Kind regards

 

[Ted Sherwood]

So we have a clash between two sections of the same Act?

Section 32(1): "If a lot...is owned by more than 1 person, each part-owner is a member of the body corporate."
Together with 41(1)

means that both co-owners are members in their own right and may vote.

versus Section 41(3).

Any reconciliation?

Regards

Hi Ted,

I believe the following section will explain how co-owners are counted in the voting at general meetings - look for my bold highlighting:

COMMUNITY TITLE ACT (ACT) 2001 - SECT 41
Voting at general meeting
(1) A member of the body corporate may vote personally or by proxy on issues to be decided at a general meeting.

(2) Voting may be by show of hands but, if a poll is required, voting is in accordance with the constituent documents of the body corporate.

(3) Co-owners may vote by proxy jointly appointed by them and, without such a proxy, they may not vote on a show of hands (except on a motion for a unanimous resolution).

(4) However, a co-owner may require a poll and on the poll a co-owner is entitled to voting rights proportionate to the co-owner's interest in the lot.

(5) If a mortgagee is in possession of a lot under a mortgage, the mortgagee is entitled to exercise the voting rights of the lessee, to the exclusion of the rights of the lessee.

Kind regards

 

[James D. Ford - Solicitor]

Hi Ted,

There is no conflict.

The votes are what counts.... and co-owners whilst both qualifying as members of the BC, cannot join together in a meeting, and obtain 2 votes by a show of hands (unless it does not matter - as in a unanimous vote is required).

Yes they can vote, as 1 proxy vote, or requiring a poll where they can vote in accordance with their % share of their lot.. both times this adds up to 1 vote per lot.

Kind regards

 

[Ted Sherwood]

OK, now I see. Thank you for your patience James.