Tackling Apathy in Bodies Corporate

We have all read about ‘apathy in bodies corporate’ and its consequences. Failure to attend meetings is most often cited as a symptom of apathy and invariably attributed to a ‘lack of interest’. That is, however, perhaps an unfair reflection on owners, in that:

• In many instances, substantial numbers of owners/investors do not live in the complex in which they own an interest. They often living intrastate, interstate or overseas and are simply unable to physically attend meetings.
• Owners have traditionally been encouraged to vote ahead of the Annual General Meeting (AGM) by emailing or posting their vote to the Secretary. This way, the motions to be ‘considered’ at the AGM have already been voted on prior to the meeting. Even when owners are able to attend, many see physically attending the AGM a waste of time.
• Owners may not be afforded an opportunity to speak, raise questions or debate a motion before it is voted on. The BCCMA¹ is silent on this issue but there is an authoritative view that “the general principles of meeting procedure establish that debate must be allowed prior to voting.“²
• Throughout the year, owners often receive no more than notices of committee meetings (often VOCMs) with little or no explanatory material (save for an agenda) – in which they are unable to participate even when they do attend.
• Body corporate committees tend to distance themselves from owners, rarely issue newsletters, convene community meetings. They rarely invite views or seek contributions from owners. More often than not, they prefer to leave owners in the dark and (it would seem) intentionally fail to take any action to encourage owners to participate in body corporate affairs.

Apathy breeds apathy

There are suggestions that owner disinterest and apathy will be cured by owners:

• attending meetings (where they often have no voice) and where resolutions have been voted on before the meeting;
• joining the committee;
• submitting voting papers if they can’t attend meetings;
• getting involved in body corporate matters;
• and lobbying other lot owners on issues of concern (notwithstanding many owners do not live on site)

These suggestions do little to address the issue of apathy.

Apathy is of course not a new phenomenon. It’s been around for years and there have been those who have exploited the opportunity to step into the shoes of voters, usually on the pretext of ‘assisting voters’, in order to manipulate the outcome of voting in bodies corporate. Some individuals ‘farm’ powers of attorney (POAs) and proxies. That is, they gather blocks of POAs and proxies. These are practices which encourage voter disinterest but permit the holders of POAs and proxies to advance their personal interests regardless of whether or not those interests are in the best interest of the body corporate. POA and proxy farming is all about power. Appreciating the impact of such behaviours, the government has previously made changes and is proposing to make further changes to the BCCMA which will limit the number of POAs to one, unless that person has a direct family relationship with the giver of the power of attorney, and further reduce the number proxies a person may hold.

Other persons/organisations intent on pursuing their commercial objectives (which may not be in the best interest of the body corporate), lobby owners to influence their voting. Lobbying per se is not specifically regulated by relevant legislation. Lobbyists, even more blatantly, intentionally undermine the democratic voting processes enshrined in the BCCMA, (again) on the pretext of assisting voters by providing owners with completed voting papers (which include ticking ‘yes’ or ‘no’ against each motion). They advise trust from naïve owners that they need only sign the voting paper and forward it to the Body Corporate Secretary. That practice was considered by an adjudicator in 2014 who held that:

“If an owner simply signs a voting paper when someone else has ticked ‘yes’ or ‘no’ against each motion then the owner is not completing their voting paper themself.” ³

In this case, the adjudicator declared the votes invalid, but the practice has continued with the individuals/organisations responsible knowing they have been intentionally misleading owners.

The body corporate committee is best placed to detect such behaviours. In this regard, members need to be alert to the prospect that there are those who will act to protect their own interests and/or those who have facilitated their appointments by manipulating voting outcomes.

Body corporate committees

There is a misguided belief by many owners that the body corporate is managed either by the body corporate manager or caretaker. This is not the case. As the elected representatives of the owners, the Committee is responsible for the administration and day-to-day running of the body corporate and making decisions on behalf of and in the best interests of the body corporate, not the Body Corporate Manager or Caretaker. Both the body corporate manager and the caretaker operate under the direction of the Committee and are expected to advise and assist the committee but NOT usurp the authority of the Committee or unilaterally make decisions without first consulting with and obtaining the approval of the Committee.

If apathy in body corporates is to be addressed, more positive efforts must be made by body corporate committees. They should encourage owner participation in the affairs of the body corporate by keeping them informed, consulting with the owners whom they represent and inviting the views of and contributions from owners. They should not just publish meeting agendas with barely adequate explanations of the motions in which they are seeking owners support.

There is the view that ‘committee members are volunteers who do the best they can with the knowledge and resources they have’ and that they don’t have time to do more. Whilst that may be a valid argument in smaller bodies corporate, in larger bodies corporate this is more of an excuse to do nothing. If the committee says it is time poor and can’t keep pace, then to quote an old adage “If you can’t stand the heat, get out of the kitchen” or take steps to address the problem.

Committees can, for example, invite other owners to join sub-committees to tackle particular issues. This will ensure the committee becomes more inclusive rather than the exclusive domain of a handful of owners who operate behind the scenes with a good deal of anonymity, often assuming that they alone know what is best for the body corporate.

To take action to address the issues of disinterest and apathy, Committees do not need to consult with or obtain the approval of Body Corporate Managers or the holders of Management Rights (including caretakers and letting managers). Indeed, Committee members should be alert to the possibility that certain entities may seek to influence the committee for undisclosed commercial gain.

The measures to address apathy proposed below will cost very little beyond time and effort of committee members.

Committee members

For the most part committees do a reasonable job, but most tend to follow the trend and style of management set by past committees or long serving members who have been content to maintain the status quo and not rock the boat.

Committee members need to look closely at themselves (and each other) and decide whether they joined the committee to make a positive contribution to the work of the committee and represent the owners to the best of their ability, or whether are they just there enhance their personal reputation, status, or make up the numbers.

Have they actually been creative, put forward ideas, actively worked alone or with other members and made a positive contribution; made an attempt to reach out to and engage with other lot owners? Or have they succumbed to blindly adopting an agenda prioritised to suit a more vocal/forceful Committee member and effectively turning a blind eye to the principle that the Committee is a representative body of decision-makers and that no single committee member has any more authority than the other members or the power to make a decision on behalf of the body corporate? Committee decisions do not need to be unanimous. The consensus is best but individual members should not succumb to pressure or compromise their integrity to simply to curry favour with others.

Many committee members are ‘lay people’, often with an inadequate understanding of body corporate legislation. The Body Corporate and Community Management Act 1997 (QLD) requires Committee members to have a commitment to acquiring an understanding of this Act, including the ‘Code of conduct’ relevant to the member’s role on the committee – but how many they do so?

The Office of the Body Corporate Commissioner has developed an online training course designed for committee members with information, tools and online assessment to help them to get a better understanding of body corporate legislation.

What can committees actually do to combat apathy?

Lack of communication and transparency exacerbates the problem of apathy. Committees can and should actively encourage owner participation in the affairs of the body corporate by:

• Keeping owners informed by periodically issuing Newsletters or holding ‘on-line’ quarterly (or even monthly) information sessions informing owners of:
  • significant, scheduled repair and maintenance works;
  • proposed changes to security arrangements;
  • issues concerning the provision or disruption of essential services (electricity, gas and water) which will impact on residents;
  • and provision of information on legislative changes and topical issues such as the presence or otherwise of asbestos, combustible cladding and structural defects.
• Consulting with and inviting the views of and contributions from owners. Not just publishing meeting agendas with barely adequate explanations of the motions in respect of which they are seeking owner’s approval.
• Inviting other owners to join sub-committees to tackle particular issues, thereby sharing the workload and tapping into the expertise of other owners who aren’t on the committee. Whilst sub-committees have no authority, the committee should formalize the engagement.
• Facilitating greater owner attendance at body corporate general meetings (AGMs and EGMs), by encouraging all voters to submit their voting papers by post, fax or e-mail well in advance of general meetings AND convening all meetings on-line. This will provide owners with an opportunity to attend electronically via Skype, Zoom or similar videoconferencing technologies. Provision may also be made for owners to vote electronically if the body corporate has approved electronic voting. There should remain an opportunity for owners to attend meetings physically and hand deliver their voting papers.
• Facilitating owner attendance at body corporate committee meetings by conducting such meetings online. The usual meeting notices and timeframes would apply and even if only one or two members can physically attend the meeting venue, the business of the committee can be conducted transparently with those unable to attend the meeting venue, doing so online, by phone or by posting, faxing or e-mailing in their votes in advance of the meeting and the meeting chairman can read into the record, online, the voting preferences of all members.
• Responding to requests for information and/or complaints from owners in a timely manner.
• Using VOCMs (voting outside of committee meetings) in limited circumstances only to avoid often expressed suspicions that VOCMs are being used to pass motions in a less than transparent manner.
• Discouraging the use of powers of attorney and proxies – or better still, move to prohibit proxies. Imminent changes to the BCCMA will largely address the abuses associated with POAs, but proxies will remain a problem in medium to large bodies corporate. Those individuals who have previously engaged in POA farming will probably return to ‘proxy farming’ (albeit on a reduced scale) unless proxies are stamped out.

References

1. Body Corporate and Community Management Act 1997
2. Adjudicator Rosemann in Pacific Mansions [2012] QBCCMCmr 167
3. Bayview Residences [2014] QBCCMCmr 187