- This topic has 4 replies, 4 voices, and was last updated 2 months, 1 week ago by .
-
Topic
-
I am in a block of 12 apartments (NSW). Last year, at the AGM, it was decided (7/5) to no longer have a strata committee but to have the Strata Manager act as the SC. No details were provided of what the SM could do. Reliance was merely placed on the SCMA (can’t remember the section). This has allowed 2 or 3 of the owners, who have loved to control the block, to effectively run it the way they want. They just “decide” how things are going to be done and then send an email, giving no real opportunity for discussion or debate, getting the same “7” to approve whatever is being “done (the “approves” just do t want to challenge them). The SM basically does nothing and just accepts what they are told. Is this all legal and in accept the spirit of the Act? What can I possibly do (short of selling)?
-
Replies
-
What you have described is not legal, in that, it is mandatory to have a strata committee, and for that committee to select a chairperson, a secretary and a treasurer. However, once it does this, the committee can delegate (nearly) all of its functions to the strata manager, assuming also that the strata manager’s contract with the Owners Corporation allows this.
Nevertheless the strata committee is legally liable for anything that the Owners Corporation does, and they can be sued (and held financially accountable) for any misbehavior that the Owners Corporation gets up to, or allows its strata manager to get away with.
If, as you say, the Owners Corporation at its AGM voted down the election of a strata committee, and is relying on its strata manager to do the necessary work to run the Owners Corporation, then this is at odds with strata law. So, you should check out the actual situation. Read the agenda and minutes of the building’s AGM, to determine what the situation actually is. Ask the strata manager to advise you of the makeup of the strata committee and its office holders.
And if there is no strata committee, you have 2 fairly easy choices – you should lodge a complaint with the Dept of Fair Trading, firstly that the Owners Corporation is not following strata law, and secondly with the licencing section of the Dept that the Strata Manager is not following strata law, and is representing a building without a legally sanctioned strata committee. The Strata Manager should have cancelled their management contract with the building, if the owners refused to follow the law.
However, there are many strata buildings where the owners do not wish to follow the law, and so the strata manager may step in and run things, and the Dept just assumes that this is the best of a bad set of options. This situation is likely to increase, once compulsory training of strata committees comes into force, which will discourage owners even more than now from being involved in building management. Strata law does not handle buildings where the owners refuse to manage the owners corporation, and owners are less likely than ever to want to get involved with the management of their buildings, which is a demanding and voluntary role.
If this situation really concerns you, discuss this with a strata lawyer. You would probably have a case to appoint a compulsory strata manager, which ironically, is the same situation you are currently in, although you and the other owners would have a say in who that manager would be.
This reply has been marked as private.Hi. Are you able to respond to the June 21 update please?
The details of the functions conferred on the strata manager will be in their contract and can be pretty wide-ranging.
This is what the Act says:
29 Owners corporation to appoint strata committee(1) An owners corporation must appoint a strata committee of the owners corporation in accordance with this Act.
(4) If there is no strata committee of an owners corporation, the strata scheme must be administered by the owners corporation, but nothing in this subsection prevents a strata managing agent appointed under this Act from exercising any functions conferred on the agent.
52 Owners corporation may delegate functions to strata managing agent(1) An owners corporation may, by the instrument appointing a strata managing agent or some other instrument, delegate to the strata managing agent—
(a) all of its functions, or
(b) any one or more of its functions specified in the instrument, or
(c) all of its functions except those specified in the instrument.
(2) An owners corporation must not delegate to a strata managing agent its power to make—
(a) a delegation under this section, or
(b) a decision on a matter that is required to be decided by the owners corporation, or
(c) a determination relating to the levying or payment of contributions.
(3) A delegation may be made subject to the conditions or limitations as to the exercise of all or any of the functions, or as to time or circumstances, that may be specified in the instrument of delegation.
(4) An owners corporation may delegate the functions only if authorised to do so by a resolution at a general meeting.
(5) An owners corporation may, if authorised to do so by a resolution at a general meeting, revoke or vary a delegation under this section.
53 Exercise of delegated functions by strata managing agent(1) A function delegated under this Division may, while the delegation remains unrevoked, be exercised from time to time in accordance with the delegation.
(2) Despite any delegation made under this Division, the owners corporation may continue to exercise all or any of the functions delegated.
(3) Any act or thing done or suffered by a strata managing agent while acting in the exercise of a delegation under this Division—
(a) has the same effect as if it had been done or suffered by the owners corporation, and
(b) is taken to have been done or suffered by the owners corporation.
54 Functions of officers and strata committee may be given to strata managing agent(1) The instrument of appointment of a strata managing agent may provide that the strata managing agent has and may exercise all the functions of the chairperson, secretary, treasurer or strata committee of an owners corporation or the functions of those officers or the strata committee specified in the instrument.
(2) However, the chairperson, secretary, treasurer and strata committee of an owners corporation may continue to exercise all or any of the functions that the strata managing agent is authorised to exercise.
(3) Any act or thing done or suffered by a strata managing agent in the exercise of any function of the chairperson, secretary, treasurer or strata committee conferred on the strata managing agent in accordance with this section—
(a) has the same effect as if it had been done or suffered by the chairperson, secretary, treasurer or strata committee, and
(b) is taken to have been done or suffered by the chairperson, secretary, treasurer or strata committee.
It’s odd that the Act says there must be a committee, then tells us what the strata manager can do if there isn’t one.
But the crux of the problem is this: Is the strata manager making decision that are benefitting only some owners in a real way, or harming ths strata scheme in a real way. By that, I mean are you unhappy because you don’t agree with the decisions, or are they doing physical or financial harm to the scheme. If it’s the former, all you can do is try to persuade a majority of owners to support your view. If it’s the latter, and you can prove it, then you can go straight to the Tribunal (no mediation required) and ask for the appointment of a strata manager to run the scheme.
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.