After much delay and consideration, amendment of the Unit Titles Act 2010 and associated regulations have been approved. The amendments modify the law in many significant ways.
These amendments were designed to improve the transparency and accountability of bodies corporate in their day-to-day running, ensure that potential buyers of unit titles obtain appropriate information from a vendor, establish professional standards and requirements for body corporate managers and committee members, and enhance the processes around long-term maintenance plans.
We outline below a number of owner-specific changes.
Decision-making
The amendments clarify that a matter must be decided by ordinary resolution (simple majority of eligible voters present) at a general meeting unless the Act requires the matter to be decided by special resolution (75% of eligible voters present) or the body corporate committee has exercised a delegated authority to decide that particular matter. It is, however, open for the body corporate to decide matters within its functions and powers regardless of whether they have been delegated to the committee.
The matters that must be decided by special resolution include, for example, a reassessment of ownership interests for each unit, a proposed sale of common property or a decision not to establish a long-term maintenance fund. These reserved matters cannot be delegated by the body corporate to its committee.
Owners are now also expressly allowed to remotely attend and vote at a general meeting, even if the body corporate operational rules say otherwise. However, the Act also clarifies that an owner can only vote once they have paid their levies.
Committee governance
Although common practice, a body corporate committee must have a written agenda and keep written records of its meetings and decisions. Minutes must be promptly disclosed to all unit owners and no later than one month after the meeting. If a unit owner requests a physical copy of the minutes, the body corporate committee must provide the copy within a reasonable time.
Members of the committee must now comply with a code of conduct: to act honestly, fairly, in confidence, in the body corporate’s best interests and in accordance with the Act and regulations. Members must also commit to understanding the Act and the code of conduct.
Members of the committee must also declare any conflicts of interest to the committee. The committee must then record these declarations in a register and produce these upon request to owners and other interested parties (depending on the operational rules).
A member who has a conflict of interest cannot vote on the issue, but may take part in any discussion relating to the issue or matter of interest and be present for any vote, unless the committee decides otherwise.
If a conflict of interest was not disclosed, the committee’s decision is still valid, but the member’s behaviour may be censured.
Disputes
The Tenancy Tribunal’s jurisdiction has increased from $50,000 to $100,000.
There is also a significant reduction in filing fees for proceedings at the Tribunal, from a maximum of $3,300 down to $500.
When a body corporate attempts to recover reasonable costs from owners relating to recovering unpaid levies, legal costs are now a fixed amount.
These changes are likely to increase efficiency and reduce costs when it comes to pursuing and resolving disputes in the Tenancy Tribunal.
Buying and selling a unit title property
If you are looking to sell your unit title property, as part of the sale process you must provide a pre-contract disclosure statement (before any agreement is signed) and a pre-settlement disclosure statement (before the settlement date). Under the new law, a buyer can no longer ask for additional disclosure. This is instead replaced by the requirements on the vendor to provide complete and accurate disclosure statements.
Compared to the previous law, there are additional matters that must be included in both the pre-contract and the pre-settlement disclosure statement. These include, for example, whether the body corporate is involved in any legal proceedings, the body corporate’s financial statements and audit reports, minutes of general meetings, the body corporate levies and whether there has been any changes in the operational rules since the pre contract disclosure statement was provided. There are also separate requirements for statements of “off-the-plan” units which acknowledge that many of the matters will only be estimates at that stage.
The new law recognises that pre-contract and pre settlement disclosure statements should only contain information to the extent that an owner is able to provide it at that time.
Disclosure statements
A buyer can cancel a contract to purchase a unit title property if the vendor fails to provide a complete and accurate pre-contract or pre-settlement disclosure statements, subject to strict notice periods.
However, the buyer cannot cancel if the vendor has done what they reasonably can to provide a complete and accurate statement or if the information does not exist or if the missing or wrong information does not substantially alter the benefit or burden of the parties.
If the vendor provides a complete and accurate pre contract disclosure statement at any stage, but it comes within five working days of settlement, the buyer can delay settlement by another five working days from the date of disclosure, presumably to have enough time to assess the information.
What now?
If you intend to sell your unit title property in the future, buy a unit title or be a part of a body corporate committee, it is important that you are aware of your obligations and duties, as well as your body corporate manager, real estate agent or solicitor, who may be assisting you through this process.
James McDougall
Rotorua
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