Understanding NSW’s COVID-19 strata legislation changes

COVID-19 strata legislation changes

Following the federal government’s legislation changes to provide support and protection to communities during COVID-19, New South Wales (NSW) has introduced a raft of regulatory changes to minimise the negative impacts of COVID-19

The NSW Government’s legislative amendments, for strata, have meant providing temporary regulations to manage issues such as holding meetings, voting, and signing documents when having to remain physically distant.

With such largescale changes, it can be hard to keep track and decipher what’s going on. To help, this article will provide you with a brief overview of NSW’s COVID-19 legislation and focus on the latest regulation amendments that directly impact strata and community living:

1. NSW’s COVID-19 legislations and bills
2. COVID-19 strata legislation changes to key strata and community living regulations
3. COVID-19 strata legislation changes to voting, requirements for online voting

NSW’s COVID-19 legislations and bills

Legislative changes for NSW started taking place in March with the COVID-19 Legislation Amendment (Emergency Measures) Act 2020. This Act dealt with a range of COVID-19 issues mostly pertaining to retail, planning and local government, landlords and tenants.

However, to provide NSW with comprehensive changes that manage the magnitude of areas impacted by COVID-19, NSW Parliament has passed additional bills that work alongside or in cognate with the original Act passed in March. The NSW Government passed three major additional bills called:

• COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Bill 2020
• COVID-19 Legislation Amendment (Emergency Measures—Treasurer) Bill 2020
• COVID-19 Legislation Amendment (Emergency Measures—Attorney General) Bill 2020

Each bill provides amendments and changes to a range of acts and regulations. The Miscellaneous Bill is the bill that pays attention to strata and owners corporations by providing amendments to 38 different acts and regulations. Two of the acts that the Miscellaneous Bill deals with is the Strata Schemes Management Act 2015, and the Community Land Management Act 1989.

COVID-19 strata legislation changes to key strata and community living regulations

The COVID-19 amendments to the Strata Schemes Management Act 2015 and the Community Land Management Act 1989 are temporary. This means the changes are only maintained for either a six-month period (ending on 13 November 2020), until Parliament decides to repeal the changes, or no later than 13 May 2021 where the legislation specifies.

The recent and temporary changes to the Community Land Management Act 1928 and the Strata Schemes Management Act 2015 fall under the Regulations of the Miscellaneous Bill. The Regulations ushering in changes are called the Community Land Management Amendment (COVID-19) Regulation 2020, and the Strata Schemes Management Amendment (COVID-19) Regulation 2020.

The new and existing regulations that impact owners and committees include:

Electronic meeting notices

• COVID-19 strata legislation changes how meeting notices and documents can be distributed. Meeting notices, or any other document relating to meetings, may be sent via email. The email address must be specified by the person requiring the notice or document.

Affixing a seal and electronic signatures

• As an alternative to affixing the seal of a strata scheme or an association to certain documents, the use of a signature or electronic signature of the relevant person or persons will be sufficient. The document must include:
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  • The date or dates of signing
  • The name of each signatory
  • Relationship of each signatory to the association (such as managing agent, committee member, member of the owners corporation).
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• Where the signatory is the managing agent, the e-signature must include their managing agent’s licence number or may require the licence number of the strata company.

COVID-19 strata legislation changes to voting, requirements for online voting

• Strata and association schemes will both now be able to vote through electronic means regardless of whether they have been previously able to carry a resolution to do so. The secretary (or the managing agent under delegation) of the strata or association now has the power to authorise meetings where voting will be by electronic means.
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• Where an electronic means of voting is to be used and previously there was no resolution to do so, the secretary (or the managing agent under delegation) of the strata or association must take reasonable steps for the participation of those eligible to vote at general or committee meetings, as the case may be.
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• A general or committee meeting may use teleconference, video-conferencing, email, or other electronic means to vote when remotely participating in a meeting. Voting may also be via a pre-meeting vote.
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• Any meeting where pre-meeting electronic voting is to occur cannot include voting for an election.
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• Where a ballot is required via a pre-meeting electronic vote, certain actions must be taken. Those actions include:
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  • The secretary must make sure the electronic ballots contain instructions on: how to complete the ballot paper; the question to be voted on; the options the voter can choose from to determine their vote or preference.
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  • The secretary must provide voters the electronic ballot paper at least seven days before the meeting.
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  • The secretary must also provide voters with information regarding: how the ballot paper must be completed; closing date of the ballot; the email address that completed ballots are to be sent to so the secretary can access them (should the vote be taking place via email).
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  • The secretary must also provide voters access to a declaration that states: their name; capacity in which they are able to vote (e.g. proxy, lot owner); and, voting value where the voting is for a special resolution. If the vote is being undertaken by a proxy, the declaration must state the name and capacity of the person who nominated them.
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  • Where the ballot is a secret ballot, the secretary must ensure: the identity of the voter cannot be ascertained; that the declaration from the voter is undertaken in a way that does not expose their identity.
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  • An electronic ballot, and the form of declaration, must be sent to the secretary no later than the close of the ballot which is at least 24 hours before the scheduled time of the meeting.
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  • The secretary must ensure all electronic ballot papers are stored securely until counting begins.
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  • As soon as practical, the secretary must: review all votes; reject informal votes that do not comply with legislation; determine the electronic vote outcome.
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  • The secretary must inform parties of the ballot result at the same meeting the electronic voting was designed for.
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Extensions on time

• The first AGM of an owners corporation or association must now be held no later than six months, rather than currently two months, after the end of the initial period of the scheme.
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• An owners corporation or association must, no later than six months after transferring or using money from either the administrative fund or capital works fund, determine the amount to be levied as a contribution. Under the Act the relevant period was three months. The amount of the levy that is created, must be made such that it replenishes the fund from which the money was taken or transferred.

Informal online votes

• In the case of a ballot vote that takes place as an electronic pre-meeting vote, it is deemed as ‘informal’ or invalid, if the voter fails to vote in accordance with the information provided by the secretary.
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• Electronic pre-voting, on a voting website or other application, must provide a warning message to the user that the vote they are casting is informal (invalid).

For more information on these legislation changes, you can visit the NSW Government’s Fair Trading website here.
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