Update: Re-introduction of temporary COVID-19 measures to assist strata schemes

In response to the impact of COVID-19 on the ability of strata schemes to conduct meetings and execute documents as required under the Strata Schemes Management Act 2015, the NSW Government introduced temporary alternative provisions which originally came into effect on 5 June 2020. However, those provisions expired on 13 May 2021.

In light of the ongoing impacts of COVID-19 and the new raft of restrictions currently in place for Greater Sydney, the NSW Government has essentially re-introduced those alternative provisions.

These temporary provisions commenced on 21 July 2021 and will currently continue until 20 January 2022. They can be found at Part 11 of the Strata Management Schemes Regulation 2016.

Electronic voting

The temporary provisions allow for voting, at both general meetings of the owners corporation and at strata committee meetings, to be determined by means of:

1. teleconference, video-conferencing, email, or other electronic means while participating in a meeting from a remote location; and/or
2. email or other electronic means before the meeting, which is referred to as “pre-meeting electronic voting”.

Ordinarily, a prior resolution of the owners corporation or the strata committee would be required to allow for these other means of voting, in accordance with Clause 14 of the Regulations. However, the temporary arrangements allow for these other means of voting to occur without such a prior resolution, in the interests of facilitating voting to be conducted without the need for face-to-face meetings.

For those strata schemes that have not previously resolved to allow for the above other means of voting, the temporary provisions require the secretary of the owners corporation or its strata manager to take reasonable steps to ensure that all people entitled to vote can participate and vote at the relevant meeting.

Despite these temporary provisions allowing for pre-meeting electronic voting, it is expressly noted that pre-meeting electronic voting cannot be used to elect the strata committee.

It is also important to note that if a notice of meeting was issued after 12 May 2021 and prior to 21 July 2021, but that meeting is to be held on or after 21 July 2021, these alternative provisions will not apply to that meeting.

When conducting a meeting using pre-meeting electronic voting, it is important to note that there are specific requirements which must be complied with when issuing the agenda for such a meeting. These requirements are outlined at clauses 14 to 17 of the Regulations and relevantly include that each person entitled to vote must be provided with the following, at least 7 days before the meeting:

1. an electronic ballot paper, which must contain:
   a. instructions for completing the ballot paper;
   b. the question to be determined; and
   c. the means of indicating the voter’s choice on the question to be determined.
2. the following additional information:
   a. how the ballet paper must be completed;
   b. the closing date of the ballot;
   c. if voting by email, the address where the ballot is to be returned; and
   d. if voting by other electronic means (such as an online portal created for this purpose), the means of accessing the electronic voting system and how the completed electronic ballot paper is to be returned.
3. an electronic form of declaration, requiring the voter to state:
   a. his or her name;
   b. the capacity in which the person is entitled to vote;
   c. in the case of a matter that requires a special resolution, the voter’s unit entitlement; and
   d. if the vote is a proxy vote, the name and capacity of the person who gave the proxy.

Affixing the seal of the owners corporation

Section 237 of the Act requires that the seal of the owners corporation (in strata schemes with more than two owners) cannot be affixed to any instrument or document except in the presence of either:

1. two lot owners whom the owners corporation has determined for this purpose, or in the absence of such a determination, the secretary of the owners  corporation and any other strata committee member; or
2. the strata manager of the owners corporation.

While affixing the seal in accordance with section 237 of the Act will in most cases still be the most practical way to proceed, the temporary provisions allow for alternative arrangements if that is not possible.

The temporary alternative provisions allow for an instrument or document to be signed and witnessed by those people specified in section 237 of the Act, without the need for the seal to be affixed. Signing can be done electronically and witnessing of signatures can be done by audio visual link.

It is important to note that if the instrument or document is to be signed under these temporary alternative provisions, the instrument or document must indicate the following:

1. the date on which it is signed and the signatures are witnessed;
2. the name of each signatory and witness;
3. the relationship of each signatory and witness to the owners corporation; and
4. if a signatory or witness is the strata manager of the owners corporation, their licence number under the Property Stock and Business Agents Act 2002.