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[pedant]

I live in a small block of 16 units in Sydney. After letter box dropping residents a year ago I was elected to the EC (soon to be the SC) and have managed to make the EC stop having “informal meetings” whereby no notice, or agenda, has been given to owners for more than 5 years.

There are now 2 matters that will be on the AGM after I got 60% of residents to object to illegal matters that require a special resolution at an AGM. These will probably be rejected.

The current issue is that the EC has had an offer to “beautify the foyer” “at no cost to the owners corporation” but no plans have been provided and they intend to have an EC vote electronically.  I have advised that they must put the plans to the AGM (due later this month or early next month) but our Strata Manager has advised the secretary (the donor) that adding “furnishings” is not subject to any legislation.

The building is 8 years old and has never had any decoration at all. I attended a meeting called by the EC to “discuss” plans for “kindly donated plants” but the interior decorator stated that such a grand marble foyer deserved something better. Suggestions included period style table, mirror, sculpture, art work etc but I am none the wiser about what we are supposed to vote on accepting. I should state I am not anti updating the foyer but consider everyone should have a say.

My question is can such a significant change be approved by an EC vote without any owner being consulted? Does S65A apply?

I should add that I have only been introduced to strata living over the past 15 months but thanks to Jimmy am now a registered Strata Manager and have 3/4 completed a licensing course but cannot find a definitive answer online.

Look forward to any advice from the panel.

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[Sir Humphrey]

Only 16 units! Heaven! Try consulting over a 100 units.

Why can’t the EC (which must be about 1 in 3 units anyway) just nominate a time at which anyone interested can stand around in the foyer and hear about what is suggested and throw in their own 2c worth? If it turns out that one generous person has offered to provide a nice table and a few pot plants at no cost to anyone else, and there is no safety issue (obstructing access or whatever), why not see how it looks? If it turns out nicely, then great. If it turns out that the plants die and the table is ugly, then nicely ask the person who put them there to take them away again. 

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[pedant]

Thanks for your rather flippant reply but it is a bit more complex than that.

There are actually 5 EC members of which 2 are the Secretary, Chairman & Treasurer.  These 2 run the show and bypass the legislation for major decisions.  and for 5 years all meetings and decisions have been “informal”.

In relation to the current issue they will have $7000 plus donated on the understanding that the donor makes the decision on what will put in the foyer. A binding agreement will be signed with the interior decorator and the email to EC members states the donor will make “the final decision on the choice of furniture items”  In addition he is asking for donations in cash or kind from other EC members but not providing any plans.

This is a very formal lot who live here and without any idea of what is actually being proposed it may well not be to everybody’s taste.  The “agreement suggests that furniture becomes the property of the owners corporation who will be responsible for maintaining and insuring against theft.

From a large bare marble foyer to whatever is a bit more than plonking a table and  few plants down and seeing what happens.  If a minimum of $7000 is being spent it requires input from all owners but the plan is to vote then tell owners “as a matter of courtesy” after the deed is done.

I would really appreciate a serious reply re S65A as I would welcome an update but think it should be by consensus.

Thanks

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[Jimmy-T]

This doesn’t sound like a 65A issue as you are not physically changing common property.

Talk to a strata lawyer but it feels like a special resolution by-law issuing a licence to accept the donation, maintain and insure the materials, and permit them to be left on common property.

This kind of special resolution has two built-in protections.  First it must be passed by 75 percent of owners voting at a general meeting and secondly it can’t be revoked without the permission of the donor.

Strata law doesn’t anticpate acts of philanthropy (with strings) so this may be as good as you’ll get.

 

Division 4 Special provisions for by-laws conferring certain rights or privileges

51   Application of Division

(1)  This Division applies to a by-law conferring on the owner of a lot specified in the by-law, or the owners of several lots so specified:

(a)  a right of exclusive use and enjoyment of the whole or any specified part of the common property, or

(b)  special privileges in respect of the whole or any specified part of the common property (including, for example, a licence to use the whole or any specified part of the common property in a particular manner or for particular purposes),

and to a by-law that amends or repeals such a by-law.

(2)  This Division does not prevent an owners corporation making a by-law in accordance with section 54 of the Community Land Management Act 1989.

52   How does an owners corporation make, amend or repeal by-laws conferring certain rights or privileges?

(1)  An owners corporation may make, amend or repeal a by-law to which this Division applies, but only:

(a)  with the written consent of the owner or owners of the lot or lots concerned and, in the case of a strata leasehold scheme, the lessor of the scheme, and

(b)  in accordance with a special resolution.

(2)  A by-law to which this Division applies may be made even though the person on whom the right of exclusive use and enjoyment or the special privileges are to be conferred had that exclusive use or enjoyment or enjoyed those special privileges before the making of the by-law.

(3)  After 2 years from the making, or purported making, of a by-law to which this Division applies, it is conclusively presumed that all conditions and preliminary steps precedent to the making of the by-law were complied with and performed.

53   Can a by-law contain conditions?

A by-law to which this Division applies may confer rights or special privileges subject to such conditions as may be specified in the by-law (for example, a condition requiring the payment of money by the owner or owners of the lot or lots concerned, at specified times or as determined by the owners corporation).

54   By-law must provide for maintenance of property

(1)  A by-law to which this Division applies must:

(a)  provide that the owners corporation is to continue to be responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, the common property or the relevant part of it, or

(b)  impose on the owner or owners concerned the responsibility for that maintenance and upkeep.

(2)  Any money payable under a by-law to which this Division applies by more than one owner to the owners corporation or to any person for or towards the maintenance or upkeep of any common property is payable by those owners proportionately according to the relative proportions of their respective unit entitlements unless the by-law otherwise provides.

(3)  To the extent to which a by-law to which this Division applies makes a person directly responsible for the proper maintenance, and keeping in a state of good and serviceable repair, of any common property, it discharges the owners corporation from its obligations to maintain and repair property under Chapter 3.

55   What is the effect of a by-law?

(1)  A by-law to which this Division applies, while it remains in force, continues to operate for the benefit of, and is binding on, the owner or owners for the time being of the lot or lots specified in the by-law.

(2)  If a person becomes owner of a lot at a time when, under a by-law or under this subsection, a former owner is liable to pay money to the owners corporation, the person who becomes owner is jointly and severally liable with the former owner to pay the money to the owners corporation.

(3)  Any money payable by an owner to the owners corporation under a by-law to which this Division applies or under subsection (2) may be recovered, as a debt, by the owners corporation.

If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. 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. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.

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[pedant]

Thanks Jimmy I appreciate your input.

The EC member who has generously proposed the foyer upgrade is insistent that he is accepting the advice of our strata manager that “furnishings” do not require any owner participation and can be decided by a “paper vote”.

My understanding of the legislation is that the EC can “repair and maintain” common property but need owner approval to “improve and enhance” . I am being pedantic because the EC have no understanding of what can and can’t be done legally and don’t follow any rules.  

I agree a by-law would solve the problem but convincing them is not likely to succeed as everything is done by email and i am sick of arguing. The donor has drafted an agreement which he intends to send to EC members for a vote.

There are 5 members of which only 2 make the decisions.  Until October last year when I was elected there were only 3 EC members who held “informal meetings” and approved spending on multiple large projects.  There were never any meeting notices or minutes and the AGM notes had no explanation.  The Sinking Fund after 8 years had $12,000 but at the end of this financial year had $32,000. At least $8000 of this has been spent since 1/9/16 on unapproved “improvements.

Welcome to strata world where anything goes.

Do you think it is unreasonable to wait until our AGM in the next month or so to advise owner’s of what’s proposed?

Regards 

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[Jimmy-T]

If it was just a case of the donor parking the new furniture in the foyer, it would be just a paper vote. because it’s fundamentally a request to leave furniture on common property.

However, attached to that is a demand that the owners corp takes ownership of the furniture, insures it and promises not to remove it.  That is where the procedural issue lies and the donor has to either remove the caveats from the gift or allow the owners corp to do this properly so that the majority of owners agree to the “contract”.

With your AGM just a few weeks away, leave it till then and save yourselves the cost of another general meeting. It will be a hard task, convincing someone who doesn’t “get” strata law but it will be worth it.

If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. 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. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.

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[pedant]

Thanks Jimmy. 

Since posting this the EC has backed down and will now be putting it on the agenda for AGM in November. Time will tell if I can convince enough owners to attend. The meeting is set for before the introduction of new legislation so proxy farming will again occur.

I will use your advice to try and sway the other owners.

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[Sir Humphrey]

Strata law doesn’t anticpate acts of philanthropy (with strings) so this may be as good as you’ll get.

The casual approach I suggested was before realising the strings attached. I would be philosophically opposed to that. If something is worth doing to improve the common property then the OC should decide and pay for it. 

There is a ‘slippery slope’ argument against letting people with more money get to have disproportionately more say than their single vote about what happens to the common property. 

In our OC we have a couple of good quality park benches that an owner salvaged for nothing, cleaned up, restored, and put in places on our grounds that are nice for sitting and contemplating the view. Nobody has objected or even asked where they came from but the donor understands that if ever the OC decided they should not be there, he would take them away. If he had demanded money for them, it would have been very different.

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