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[kezza111]

I have an owner who has submitted two motions to request a Notice to Comply due to breach of By Law 17 (Sch 2) to be issued to two Lot Owners.

1st Owner – colorbond fence erected on the inside of the owners courtyard boundary side at their own cost (not on the fencing line) – this was suggested by the NCAT Tribunal Member back in April this year.

2nd Owner – Colorbond courtyard fence erected shared between the 1st and 2nd owner. 2nd owner also installed large temporary awning stand alone structure in their courtyard…not attached to back common wall (he’s a builder by trade). 

Cannot see the courtyards from the front or side of the building due to large double brick common wall so doesnt affect the appearance of the building.

Tribunal member suggested due to deadlock of owners that the owners install at their own cost inside their boundary line their choice of courtyard fencing materials.

The other owners have no issue with the awning…in fact they all want one too (except one owner) as the courtyard gets full sun no shade. Majority of the owners have indicated to me that they will vote against these motions.

Are these two motions unenforceable?

Am I able to at the meeting call out that these motions are “out of order”?

Many thanks.

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[Jimmy-T]

The critical issue is whether you think there is a by-law that’s applicable to the two motions (because the allegedly breaching owners have to have something to comply with). 

If there is a by-law and you think the owners are not in breach, it would be much safer to say so at a meeting but take a vote to confirm that.

If the owners are technically in breach of a by-law but the by-law doesn’t make much sense, then you should attempt to amend the by-law at a general meeting and then call on the committee to defer the NtC until such times as that has been done (or not).

But taking it upon yourself to reject motions because you think nobody agrees with them is dangerous territory and can only lead to prolonged strife in your strata scheme.

One way round this would be to get one-third of owners to sign a petition to you before the meeting, saying they are against the NtC motion.

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[g-g]

To add to Jimmy’s comments –

s 19 SSMA 2015 – Chairperson may rule certain motions out of order

The chairperson at a meeting may rule a motion out of order if:

(a) the chairperson considers that the motion, if carried, would conflict with this Act
or the by-laws of the strata scheme or would otherwise be unlawful or unenforceable, or

(b) any requirement of this Act to include the form of the motion in the
notice of the meeting has not been complied with.

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[kezza111]

Thanks guys.

As the chair I’ll take your recommendation and say so at the meeting that the by-law is not in breach but take a vote to confirm that.

Does this mean that the owner who submitted this motion for inlcusion into the agenda and the two owners that it refers to have to abstain from voting as it would be a “conflict of interest”?

PS: I have FINALLY found a licenced Strata Manager (branching out and starting up her own business) to take us on! Yay!!! But she has said that after 12 months if there continues to ibe nternal disputes/conflicts and no moving forward with deadlock votes in regards to common property repairs/replacement then she will resign.

Following on from our AGM, I’m going to have to go Mediation/NCAT under Sect 232 as an owner to force the OC to replace the boundary fence and to replace main bedroom windows (seized and 50 years old) to be compliant with the child locks legislation….again deadlock decisions made by our OC.

But….I’m still happy that someone is prepared to take us on! 🙂

Sorry I got side tracked…do these three owners have to abstained from voting as it relates to them?

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[Sir Humphrey]

In the ACT, there is no requirement for people with an interest in some proposition to abstain from voting. May be different elsewhere. 

If a vote goes differently from how it ‘should’ and that is only because of the vote of an interested party, it could be possible to get a Tribunal order reversing the decision (in the ACT at least) on the grounds that the decision was ‘unreasonable’. 

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[Author]

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