Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 which came into effect on 31 March 2020 restricts people from leaving their place of residence without reasonable excuse. Reasonable excuses include to travel for work, but only where this cannot be done at home. As a result of this, many offices have shut and set up their employees to work remotely.
One of the many questions that is, or will soon be, on the minds of owners corporations and strata managing agents is how documents or agreements will be signed during the COVID-19 pandemic in light of the above order.
Signing documents requiring the seal of the Owners Corporation
Section 273 of the Strata Schemes Management Act 2015 (the Act) provides for the circumstances in which the seal of the owners corporation can be affixed to any instrument or document.
It is standard practice for an owners corporation’s seal to be held in safe custody at the offices of their strata managing agent. However, with most offices being shut and strata managers working remotely, they would not have instant access to the seal.
The Electronic Transactions Act 2000 provides that an agreement may be made by way of electronic communication and provides that if a person consents to a method of electronic signature and intends that signature to be their consent to the agreement then it will be as binding as a signature in writing. If a signature of a person is required under a relevant law, section 9 of the Electronic Transactions Act 2000 provides the circumstances in which the requirement is taken to have been met in relation to an electronic communication. These circumstances are when:
- a method is used to identify the person and to indicate the person’s intention in respect of the information communicated, and
- the method used was either—
- as reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement, or
- proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence, and
- c) the person to whom the signature is required to be given consents to that requirement being met by way of the use of the method mentioned in paragraph (a).
Amendments have recently been made to the Electronic Transactions Act 2000 by the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 that may eventually assist owners corporations. Section 17 of the Electronic Transactions Act 2000 provides that a regulation may be made to alter arrangements for the signature or witnessing of documents. This amendment makes it possible for a regulation to be made to allow the affixing of the seal of an owners corporation by electronic means. However, there has been no change made to the Strata Schemes Management Regulation 2016 to date.
Until a regulation is made, strata managing agents will need to establish practices to enable their strata managers (perhaps once a week) to access the offices to use the seal of an owners corporation as required and witness it being affixed pursuant to section 273(2)(b) of the Act.
Where a scheme does not have a strata manager or where the document being executed is an agreement to appoint a new strata managing agent (or a strata managing agent without a current strata management agreement), then arrangements need to be made for two relevant members of the owners corporation to witness the affixation of the seal as provided under section 273(2)(a) of the Act. This could quite easily be arranged between the two relevant members where a scheme does not have a strata manager.
Where the seal is being held by the strata managing agent, this could be done by the strata manager and the two relevant members meeting at the offices of the strata managing agent by appointment to enable the strata manager to ensure a safe environment. If sufficient room is not available in the strata manager’s office it may mean the strata manager standing inside the office and the two members standing outside with the strata manager affixing the seal to the agreement in the presence of the two members and then slipping it under the doors for them to sign and hand back.
Documents not requiring the seal of the Owners Corporation
In the case of documents that do not require the seal of the owners corporation, the strata manager will be able to sign this on behalf of the owners corporation if this power has been delegated to them under the strata managing agreement. Examples of documents that do not need the seal of the owners corporation include:
- letters sent by the strata manager on behalf of the owners corporation,
- breach of by-laws notices,
- applications to the NSW Civil and Administrative Tribunal in respect of strata disputes and
- documents or work orders to engage appropriately qualified tradespersons to repair and maintain common property within expenditure limitations.
The Strata Manager can take advantage of the Electronic Transactions Act 2000 to sign these documents electronically.
Article authors: JHS and AB