Question:
Whilst my brother was in New Zealand for a year I lived in his townhouse and was voted in as a trustee of the complex at the Annual General Meeting (AGM). Prior to this my brother was caretaker and his wife was chairperson. They have subsequently returned and I moved out. I am, however, still being consulted together with the other trustees regarding day to day running of complex and issues that arise.

One of the trustees is now objecting to the fact that I am neither a resident nor an owner and should therefore not be a trustee.

The AGM will probably take place in September or October when my duty will end, but I'd like to know what the legality of my position is until then. Should I resign? Can I be voted off?

I would like to remain a trustee as I take my duties seriously as well as informing my brother what is going on in the complex.

Answer:
In terms of prescribed management rule (PMR) 5 a trustee is not required to be an owner in order to qualify for office as a trustee provided that the majority of trustees are owners or spouses of owners and that the managing agent or any of his/her employees may not be a trustee unless s/he is an owner.

So provided the majority of trustees are owners or spouses of owners and the managing agent or any of his/her employees are not trustees unless they are owners, there is no problem in you acting in the office of trustee for this scheme. The rule is not qualified in any way relating to residents or non-residents and therefore it is not a requirement that a trustee reside in the scheme where s/he serves in the office of a trustee.

It is very common for non-owners and non-residents to be trustees in schemes and you have no obligation to resign due to the fact that you no longer live in your brother's townhouse. Provided you are committed to your office as a trustee and you are available to attend trustee meetings and carry out your fair share of the body corporate's duties, there is absolutely no reason why you should not act as a trustee. You seem dedicated to your position and that is great for the management of the scheme.

It is possible for you, or any other trustee, to be 'voted off'. In terms of PMR 13(e) a trustee will cease to hold office as such if by ordinary resolution of the general meeting s/he is removed from office, provided that the intention to vote upon the removal was disclosed in the notice convening the meeting.

Therefore, if the notice of a general meeting discloses the intention to vote upon your removal from office as a trustee and then at the general meeting more than fifty percent vote in favour of your removal, you would be legally removed from office.

However, if you are not removed from office before the upcoming AGM, your office will continue until the end of the AGM and, if nominated, you will be eligible for re-election to the office of trustee at the AGM.

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