WE HAVE THE POWER – DO YOU?
In recent times, we have been asked, on more than one occasion, whether a duly appointed attorney of an owner can attend a committee meeting.
As a general rule, an attorney can do anything the grantor of the power can do.
In body corporate terms, this means that because an owner has a right to attend a committee meeting, the owner’s attorney ought to have that same right.
Is the answer that simple though?
Under section 51 of the Standard and Accommodation Modules a person who is not a member of a committee may attend a committee meeting if the person is:
- an owner of a lot who has provided the requisite notice; or
- another person invited to attend by a majority of the committee voting members.
Item (b) above seems simple enough. But what about item (a)?
It wouldn’t be “BoCo” if there wasn’t some complication.
The complication is this.
The Act defines an “Owner” as the person who is, or is entitled to be, the registered owner of a lot and includes a mortgagee in possession.
An owner’s attorney is not entitled to be the registered owner of a lot.
Accordingly, on a strict reading of section 51, it could be argued that an owner’s attorney has no statutory entitlement to attend a committee meeting.
That said, how would an owner who is incapacitated for example, exercise his/her right to attend a committee meeting if not through the owner’s attorney.
As we all know by now, bodies corporate must act reasonably.
In our view, it is reasonable to allow an owner’s attorney to attend a committee meeting where the owner is unable to.
In any event – what is the harm if the owner’s attorney attends? The attorney can be present but may only observe the meeting, unless of course invited to speak by the committee.
As always, ACTIVE LAW is here to help in deciphering the complexities of the Body Corporate world.