- This topic has 25 replies, 8 voices, and was last updated 8 years, 11 months ago by .
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Topic
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The OC that I chair is having a committee meeting soon.
One of the committee members wants to add to the agenda:
That the OC contact the council re:
- Street lighting.
- Fading on-street parking line markings.
- On-street tree protection. They might be damaged eg by trucks when parking.
While they are all reasonable matters, I wonder if they are outside an OC committee’s (and even an OC’s) jurisdiction? Neighbour properties would be affected by the issues too – there are many properties in the street.
When I look at the OC Act (at least in Victoria) it’s pretty clear that an OC’s primary duty is to common property. The very creation of an OC is due to the fact that common property exists when the strata plan is first registered. I can’t see that any of the matters relate to an OC’s duties around common property.
And I’m not even sure that an OC committee alone has the right to represent owners on matters that fall outside the OC Act. An OC is not a rate payer and does not vote in council elections. But individual owners are and do.
What are the opinions? Can OC committees represent all the owners on matters that are essentially neighbourhood issues? And if so, should they? I’m concerned that the committee could be overstepping its authority.
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@Austman said:
Does simply sharing a driveway, and absolutely nothing more, give an OC committee the legal right to represent all the lot owners on matters that don’t directly relate to the common property in that strata plan? I sure hope it wouldn’t!I am getting a bit weary of this “legal right” argument. Do I have the legal right to express an opinion in public? Yes, I think I do. Is my “freedom of speech” defined in Australian law? No, I don’t think it is. By your logic, that means I don’t have the legal right to express an opinion
I have friends living in strata Plans of Subdivision where only some of the lots are members in an OC … to me, the above demonstrates the reason an OC is created is very much to do with common property maintenance and not much more.
In that specific instance you might be right. But those are very specific instances. They certainly don’t apply to all strata schemes.
I’m not so sure that I agree that a committee should be allowed to automatically legally represent me on those issues.
Again, the weasel words “legally represent”. How is expressing an opinion to a public body (or, indeed, the media) legal representation?
They can speak out if they want, as residents and ratepayers but I’m still struggling to see how they can legally say they represent the views of 190 owners (as is the case in one of my OCs where I am a committee member) on matters not defined by law as a committee’s function.
And again … “legally say”. If we are going to go full Rumpole on this, the NSW Fair Trading factsheet on what a strata committee does says this right at the top: “The strata committee of the owners corporation represents owners or owners’ nominees.”
That’s it. No exclusions, qualifications or definitions of “represents” (although it does go on to specify other duties, which include the secretary “doing all administrative and secretarial duties for the owners corporation and the strata committee.”)
In your nightmare scenarios of owners who only share a driveway but find they are, let’s say, supporting a high-rise brothel on the street corner, the solution is simple – you hold a meeting, you instruct the committee to write to the council and say “we have no opinion on this.”
Except you wouldn’t. You’d say, the views expressed previously were not representative of the majority of owners and this is what we actually feel.
I find it astonishing that, given the checks and balances referred to several times before, we are still discussing this as if strata committees were issuing edicts like Stalinist propagandists and owners had no recourse to correcting the situation. Neither of these situations pertain anywhere that I know of.
And if they did, the mechanisms are there to put things right. Expressing an opinion is not legal representation – except, for instance, when the committee attaches the strata seal to a development application.
I am often called upon to express the opinions of Flat Chat readers – I do my best to give the general consensus but I and the people I’m talking to know that I don’t represent every one of the readers of this website and, indeed, that some readers disagree with my views quite vehemently.
And here’s the other thing – if you don’t want your committee to get involved in any local issues outside the strata scheme, there’s a mandatory motion (in NSW) in every AGM agenda where owners are invited to instruct the committee not to even discuss certain matters.
Try running a ‘no comment’ motion at your next AGM – you might be surprised by how many people want to be represented by the strata committee – and there is absolutely nothing in the law that says they can’t be.
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I don’t think it is a matter of whether a Committee has the legal right, perhaps it is more a matter of whether they are authorised to take a position or make submissions on behalf of the owners corporation as a whole.
Looking at the legislation and the functions of the OC set out in section 9 which are essentially delegated to the SC, I’m not sure that they do. However, you don’t want to cut off your nose to spite your face, and I agree with Jimmy that there are a number of instances where a submission by the Committee can be of great use, taking into account that many owners may not be aware of an issue or just can’t be bothered.
One way of dealing with this could be to put up a resolution at the AGM to authorise the SC to do that kind of thing, within certain parameters.
An interesting parallel is with the recent marriage debate, the Law Society of NSW issued a joint statement with the Bar Association and AMA NSW supporting a change to the Marriage Act. A number of members of the Law Society have called on the president to resign, because in their view the Council of the Law Society does not have the right to represent the views of its members on the issue. Even lawyers can get themselves in a knot about this type of thing.
@Austman said:
…I’m sorry to harp on the matter but one of my committee members wants the committee to contact the council as the legal representative of all the owners about some matters where opinions are likely to vary. I don’t think that’s right at all.It really comes down to whether the majority of the committee is confident this particular opinion is widely held by the owners generally. That is for them to satisfy themselves about. You disagree, so argue your case. Conduct a straw poll of the next 10 people you see rather than both sides speculating about how widespread a particular opinion is.
Even if the committee actually has hard evidence that opinions vary, they might still be able to honestly and reasonably represent a view that “Many, though admittedly not all, of our owners are concerned about X because of Y”. In my opinion, owners’ opinions do not need to be unanimous before the committee could act.
The committee just needs to qualify its statements honestly and appropriately in what is written or in what an appointed representative is asked or authorised to say:
- “Some of our owners have asked us to pass on their concern that…” or
- “Many of our owners are concerned…” or
- “Almost all our owners…” or
- “A recent general meeting resolved that…” or
- “Our committee members are concerned about … and we intend to draw this and your response to the attention of our owners”.
There are many ways to avoid overstating or misrepresenting what is being represented when making representations to some authority!
It can be very frustrating to read about residents in a Strata Scheme who don’t want to be on the Strata Committee, don’t usually attend meetings of either the Strata Committee ( to observe some of the issues they deal with) or the Owners Corporation ( when they see the Agenda and do not have an interest in the motions ) but then make a big issue if that same Strata Committee makes a decision that they don’t agree with. Suddenly the issues of the Strata Committee should be an issue for the Owners Corporation. No. You can’t elect a Committee and expect them to do all the work, and then when you don’t like what they decide, suddenly decide that that particular issue must go to the Owners Corporation.
So in my humble opinion you can’t have it both ways . Either leave the Strata Committee to act on behalf of all owners and that means that sometimes you may not agree with their decisions but accept that they had the right to make them, or stand for election to the Strata Committee and influence what issues they should deal with and what issues you can propose should be taken to the Owners Corporation.
@Austman said:
Sir Humphrey said
And then Part 3 and elsewhere in the Act provides more detail. I would argue that s.16(1)(c) covers comment on development proposals in the neighbourhood.
I think you might be over interpreting S.16(1)(c)? That function exists in Victoria too. I think it means the other laws have to specifically give that power to an OC…
As I suggested elsewhere above, let’s forget about pedantic interpretations. However, if you insist: The EC exercises the functions of the OC. The OC is a ‘legal personality’. Legal persons can have opinions and state them. The EC can say what it likes to whoever it likes on behalf of the OC – so long as it is careful to not overstate things.
If there is an OC resolution to (say) condemn some proposal, it can state very strongly that the OC objects.
If it is just plain obvious that some proposal would have some effect, the EC can and should say so on behalf of the OC, even if it would not warrant calling a general meeting or conducting a survey.
The EC should say what it believes to be defensible and true. If that is “Many of our residents are concerned that…”, then that is what it can say, no more, no less, perhaps on the basis of just talking informally to a fair sampling of residents and finding most concerned. If it is only that “The members of the committee of Units Plan XYZ are concerned that…” then that could also be a fair, true and honest statement to make, even if the committee has not spoken to anyone else.
Looking for a specific legal power seems like excessive pedantry to me so long as the committee is being honest, not overstating the situation, and acting defensibly in the interests of the OC.
Back when I thought the rule of law had a significant role in my Strata block I recall understanding that no expenditure could be approved involving considerations outside the block (which include things which common sense would suggest effect all owners).
In extremis for example if 8/10 unit holders felt strongly about the general need for a change in government and wished to approve expenditure of most of the retained funds as a donation it could not be sanctioned. For the Strata Mgr. to make one 45c call (plus $30.00 charges) to the local council about nearby potholes is essentially the same in principal. If three of those ten owners could find the wherewithal to contact the council at their own expense it would likely be more effective.
The 8/10 wanting a change in govt. may passionately believe that some issue such as going to war with Japan over whaling is more important than potholes and will allow them to sleep easier than stopping the rattling trucks hitting the holes. The more likely contentious areas are somewhere in between i.e. hiring a solicitor at significant expense to threaten legal action against a neighbouring business which generates noise/smells affecting a percentage of Owners.