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Dear all
I’m an owner in an OC as well as member of SC (a new one, recently nominated myself on the last AGM). After the AGM I’ve asked SM agent to share Strata roll (basically email list of owners) in order to be able to have communications with strata owners as I believe that transparency is the key, however SM agent refused to provide the same due to “privacy concerns”. After some research I’m aware that there are sections 181 (need OC approval) and 182 (need to pay a fee) in SMMA that I can use to get the strata roll, however as a SC member I believe I entitled to get the strata roll free of charge and without other SC members approval according to Property, Stock and Business Agents Regulation 2014 clause 38(1) “ A strata managing agent or community managing agent must permit, on demand made at any reasonable time, any member of the executive committee of an owners corporation, community association, precinct association or neighborhood association for whom the agent acts as managing agent to inspect any records or books of account of the corporation or association.”
I’ve seen some messages in the Internet forums that NCAT ordered to provide requested information for similar cases . Does anybody have any experience with getting the strata records based on PSBA section 38(1)? If yes any recommendations how to approach NCAT in the most effective way?
Thank you!
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Sections 181, 182, and 183 of SSMA 2015 cover access to strata records, including the strata roll.
You are entitled to access the roll. Perhaps, as a mere owner, this may only include owners’ postal addresses rather than email addresses. However you stated that you are an SC member so perhaps email addresses may also be available to you.
Are you the Secretary of the SC?
Below is a legal opinion from Bannermans Lawyers (http://www.bannermans.com.au/articles/strata-and-development/216-owners-corporations-getting-access-to-your-records):
“OWNERS CORPORATIONS – GETTING ACCESS TO YOUR RECORDS
There seems to be a common misconception that an owners corporation requires permission from its strata managing agent to access the strata roll and other records maintained for it by its agent. That access is often denied, frequently citing privacy law concerns. This is a misconception, because these are the owners corporation’s own records and it is entitled to them under various legal principles.
In particular:
- The general principle under agency law is that documents created or held by agents in that capacity are the property of the principal, in this case the owners corporation. Although this would be subject to any contrary provision in the agency agreement, such a provision would be unusual and is not contained in the most commonly used templates.
- Failure by an agent to provide access may constitute a breach of the agency agreement, the agent’s associated fiduciary duties or give rise to a cause of action in tort, e.g. conversion or detinue. In other words, the owners corporation may be able to sue the agent and hold the agent liable for any loss suffered by the owners corporation.
- Owners corporations also have powers under Section 181 of the Strata Schemes Management Act 2015(“SSMA”), which provides in effect that a strata committee can give notice to a person in possession or control of property (including records) of the owners corporation requiring the person to deliver the property to a specified strata committee member, non-compliance being an offence.
- Further, failure to provide access may constitute a “failure to account”, justifying appointment of a manager or receiver under Part 9 of the Property Stock and Business Agents Act 2002 or action of a type justifying disciplinary action under Part 12 of that act.
- These rights, including under section 181 of the SSMA, are subject to any claim or lien which the agent may have in relation to the records. However, whether an agent has a lien at all, which records it applies to and whether it negates rights under section 181 are all complex questions requiring further legal advice if a lien is asserted.
An inspection under Section 182 of the SSMA is not required. That is a procedure available to third parties, e.g. lot owners and is not required by an owners corporation, which is after all seeking access to its own documents, for which it requires no authority.
The privacy laws do not prevent an agent from disclosing, to its principal, information collected or held on behalf of its principal. In fact, the privacy legislation permits personal information to be collected, held, used or disclosed if required or authorised by law. The collection/access in issue is required by various provisions of the (“SSMA”). In other words, there is no sound basis for an agent to claim privacy concerns as a basis for withholding access.
Another common claim by agents, which is also incorrect, is that the relevant records are the agent’s own business records. Records prepared solely for the agent’s own use may be excluded, but the strata roll and other documents normally sought by an owners corporation do not fall into that category.
Accordingly, owners corporations should not feel frustrated by such situations, as there is a great deal which they can do if denied access to their records.”
The legislation permits the Committee to act on behalf of the OC. You could ask the Secretary of the Committee and/or the Committee to authorise the SM to provide your access to the Roll, being that you are a committee member.
However, the easy way is to just pay the $31 inspection fee! It will save you a lot of time and anxiety.
The Office of Fair Trading web site states:
Inspection of records
An owner or mortgagee (or their authorised person) can make a written request to the owners corporation to inspect the records. The request must be accompanied by the prescribed fee (currently $31 for the first hour of work).
The inspection is to take place as agreed by both parties. If no agreement can be reached within 3 days after the owners corporation receives the application, the owners corporation may stipulate the time and date by giving written notice. The inspection date cannot be later than 10 days from the date the owners corporation receives the notification.
Documents can be inspected in person or through electronic access to the documents or any other means agreed. A person may make copies of documents but must not, without the consent of the owners corporation, remove the document from the custody of the owners corporation.
I have not seen the PSBA used in these circumstances. It seems overly complicated to use the PSBA considering that you are able to access the Roll under the SSMA.
S. 181 permits the Owners Corporation to access the records. So this can be authorised by the Secretary, or else as a member of the Strata Committee you could make an agenda item for the next SC meeting, along the lines of authorising members of the SC to inspect the records under S.181, and making sure this is minuted. Check the minutes of that meeting, since the Agent prepares the minutes, and may ‘accidentally miss’ including this item in the minutes!
Or else, as a Lot owner you can inspect under S.182, and pay the fee of $31. Officially, there is a form to fill in too, and the need to organise a time, which you may need to do if you Strata Agent is a stickler for the rules. But normally if you pop into the Agent’s premises, and hand over $31, they will normally give you access straight away. You need to copy the records, so either take a pen and paper, or else use your mobile phone to photograph the email addresses you are interested in.
s38(1) of the Property, Stock and Business Agents Regulation 2014 (NSW) states:
A strata managing agent must permit, on demand made at any reasonable time, any member of the executive committee of an owners corporation, community association, precinct association or neighbourhood association for whom the agent acts as managing agent to inspect any records or books of account of the corporation or association.
and s43(1) of the Property and Stock Agents Regulation 2022 (NSW) states:
A strata managing agent must permit, on demand made at a reasonable time, a member of the strata committee of an owners corporation or the association committee of an association for which the agent acts as managing agent to inspect the records or books of account of the owners corporation or association.
Making clear that (since 2014) a Committee member of a Strata Scheme can access all records of the owners corporation held by the strata managing agent at no cost.
No exceptions, exemptions, or approvals apply.
This seems reasonably under-represented in Google results (hence this “late” response), maybe because people think only the Strata Schemes Management Act 2015 and Strata Schemes Management Regulations 2016 apply.
Nope, we Strata Managers have many Acts and Regulations which apply to us.
Transparency is good 🙂
Making clear that (since 2014) a Committee member of a Strata Scheme can access all records of the owners corporation held by the strata managing agent at no cost. No exceptions, exemptions, or approvals apply.
Wish I’d known that when our former strata manager at Notstrata refused to provide the strata roll to the secretary because it was “private” and the then strata commissioner declined to say who was right and who was wrong.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Wish I’d known that when our former strata manager at Notstrata refused to provide the strata roll to the secretary because it was “private” and the then strata commissioner declined to say who was right and who was wrong.
Yeah, it took some finding, but I knew I’d seen it somewhere!
It doesn’t seem to be in many searchable locations, hence me going to the trouble to post an answer here with the wording.
It’s a further sign about how legislatively-complex Strata is as so many Acts impact on how the “system” is run – I’m a geeky owner/committee member/licensed strata manager and I get lost sometimes!
Complicated for sure. For instance, can an owner, who organised and oversaw the procurement of a quote for the repairs of common property on their lot ask the strata manager or strata committee for a copy of that quote without having to fork out $31?
What about an owner who is the emergency on-site contact for a unit block on the NSW Strata Hub? Should they have a copy of the strata roll so they know who is living where (or not) when the fire brigade turns up in an emergency?
I suggest you adjudicate the issue. Write up a summary of the argument which is covered very well above, and then provide it to the strata manager, and also tell them they should respond within 7 days with their counter argument (ie, specify those “privacy concerns” with reference to the law), and then both arguments can be submitted to Dept of Fair Trading, as a complaint about the manager’s conduct.
=> https://www.nsw.gov.au/housing-and-construction/strata/strata-complaintsI recommend other people with issues about strata managers do this as well. But I bet doing this will change the manager’s approach! Fair Trading are probably keen to discipline strata managers with all the publicity currently about rogue managers. They can only act on complaints, so make them! (Well, recent law changes means they can act without complaints, but they probably prefer actual complaints.)
But I understand the manager’s reluctance to provide the owner’s emails. If you do email to all the other owners, some of them will complain to the strata manager about their email address being made available. As well as strata managers being ignorant of the law (if that what it actually is), then so are the owners in the building, who assume their email and personal data is being kept confidential, like if they give that to a bank or solicitor. If owners then withdraw their email addresses, strata managers have to revert to regular mail for meeting and levy notices, which is a big impediment to how they run their businesses…
But I understand the manager’s reluctance to provide the owner’s emails. If you do email to all the other owners, some of them will complain to the strata manager about their email address being made available.
The simple answer is for a strata scheme to have its own website or email hub. Kind of like a work email address, email addresses would be related to the unit number, then owners could choose whether or not to even look at the emails without giving too much information to all and sundry. You can set up an email host for less than $20 per user per year, depending on how much mail you are likely to be using (not a lot, would be the norm). If people are that bothered about online security the cost of three coffees a year won’t kill them.
BTW, NSW strata law says that if you have an email address you must provide it to the strata roll. Sadly, it doesn’t say whether or not that can be excluded from the strata roll when other owners ask to see it. Concerns about privacy are legitimate, but so are issues with only one voice – usually the strata chair or secretary – having access to other owners in a scheme.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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