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[Flatchatty]

An owner installed a new SECOND AC unit without authorisation in driveway-visible façade. There is nothing in the by-laws about Air Conditioning unit installations. However, I heard that lots are usually only allowed to install maximum one AC unit. In addition, installation on a driveway-visible façade is possibly in conflict with council planning restrictions concerning visible external AC units. In fact, it looks ugly from the street.

We contacted the strata manager about this installation who confirmed that no authorisation was requested or given for that installation. However, when we replied that is breaching strata law (for lack of authorisation), the by-laws (lack of authorisation) and possibly in conflict with the council planning restrictions concerning visible external AC units, and it should be removed, she replied that she is not a lawyer! But she will contact the offending owner.

What are your thoughts about this situation? What should happen? What does usually happen? and can this owner keep this AC unit installation?

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[Jimmy-T]

Flatchatty wrote:

Strata committee members must act honestly, fairly, and in compliance with the SSMA 2015 and the scheme’s by-laws. While the offending committee member has clearly failed to meet those obligations, there is no intention to remove him from the committee.

On that specific topic, by doing nothing, the committee is endorsing bad behaviour.  There are no Stratakops – someone has to raise a complaint, even if it’s just to make the other party aware that they can’t just ignore the law.

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Flatchatty

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[Flatchatty]

Jimmy-T wrote:

I agree. So is the problem that the committee members are dragging their feet? If so, I reckon a mediation application will get them moving. The committee tells the strata manager what to do, not the other way round, so the committee should issue a notice to comply now and get it over with.

Unfortunately, it is the SM who is dragging their feet. Our strata company has a very bad reputation in NSW, they were even on TV few years ago for some bad practices, and it seems that they are reluctant to deal with this breach. In addition, only one SC member is alert and aware of the Strata legal framework, and he is following up this issue with the SM.

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[Flatchatty]

There is only one committee member who cares, and they are doing their best to deal with the breach. They don’t want to have an extra issue with a neighbour. By acting on their breach, they believe that would be enough to send a message to the offending member. Also, most owners who live in the block are passive and don’t want to be involved and prefer to gossip in private about issues rather than dealing with them.

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[Flatchatty]

UPDATE:

• The SM generated and circulated a recent new version of the AGM minutes which listed 4 SC members instead of 3 SC in the original minutes.
• The SM claimed that all members have requested to be contacted individually (I’m a member and I’ve never made request)
• The SM claimed that all members requested anonymous voting.
• The SM claimed that they have a majority to approve the retrospective approval (based on the recently generated AGM minutes.)
• The SM misrepresented legislation and said the offender can vote.
• The SM misrepresented Bylaw closes

  I am shocked!

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[StrataChair]

Just to be clear on the legalities of this. Per s111 of the SSMA (below), as soon as work affects common property, unless there is a pre-existing by-law that covers it in detail, it will need a by-law or approval through a special resolution.

This is not a strata committee decision, it’s an owners corporation decision, to be made at a general meeting. And the terms of the request should be precise. A ‘letter’ seeking ‘retrospective approval’ is not a thing.

It would be a good idea for the building to work out agreed guidelines on air conditioning installation and location, then embody those in a standard by-law so the rules are clear for all. You may be able to find a suitable by-law template on one of the online services, otherwise (ideally) have it drafted by a lawyer. Apart from appearance, sloppy aircon installations can create water ingress problems and compromise electrical safety (ask me how I know!). Insist on full details of all contractor licences and public liability insurance.

Good luck!

 

111   Work by owners of lots affecting common property

An owner of a lot in a strata scheme must not carry out work on the common property unless the owner is authorised to do so—

(a)  under this Part, or

(b)  under a by-law made under this Part or a common property rights by-law, or

(c)  by an approval of the owners corporation given by special resolution or in any other manner authorised by the by-laws.

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Flatchatty

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[Jimmy-T]

I think the first thing I would do is register a complaint against the strata manager.  At the same time I would ask for mediation at Fair Trading on a section 232 action against the strata committee for failure to comply with the Act but explain to the other committee members that you are only doing this to establish the law, that it won’t cost the building anything and it will prevent this issue dragging on.

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Flatchatty

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[Flatchatty]

The main problem we’re facing now is with the SM and Strata Managing company. To secure support from the offender for renewing their management contract, the SM created an amended set of AGM minutes (created recently) that falsely added an owner, who is also a friend of the offender, as a committee member, even though only three members were elected at the AGM. The day before the altered minutes were created, the SM had already implied, incorrectly, in an email that this owner was on the committee, and it appears the amended minutes were then used to justify that claim. This was done to manipulate voting numbers and create an artificial “majority” in favour of the offender’s unauthorised AC installation.

The SM also claims that committee members required that they be contacted individually and that their votes remain anonymous. This appears to be another cover to manipulate votes. However, this not consistent with Clauses 18(1), 15(1), and 16 of the SSMA 2015.

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[Jimmy-T]

All this vote rigging is irrelevant and only shows how ignorant (0or dismissive) your strata manager is of the law.  The committee can’t approve a change to common property, which the installation of this A/C unit clearly is.  I would report the strata manager and start proceedings against the committee at Fair Trading before this goes any further.

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Flatchatty

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[tina]

Are you in NSW?  Is not this a violation of Strata Schemes Management Act 2015?

Please look up Section 108 and Section 111 of the Act.

Owners cannot alter the external appearance of common property unless a SPECIAL RESOLUTION is passed at a general meeting.

This is more than asking the strata committee to approve it.  This is asking ALL OWNERS to consider the application and vote.  Special resolution means you must get 75% of all votes cast to pass the motion.

An owner can ask for retrospective approval but it is got to be a vote of the whole owners corporation.  A single strata manager or strata committee should not approve it.  There is a lot of people playing ignorant.

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Flatchatty

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[Flatchatty]

tina wrote:

Please look up Section 108 and Section 111 of the Act.

Thanks, Tina!
I agree with you and I am aware of the legislation.

Unfortunately, our strata manager is a rogue who has no regards to the strata law. They said approval was under s110; and I’m aware that s110 doesn’t apply for an installation on the common exterior walls.

They have already did a defective committee meeting to approve the installation by ballot; but they haven’t published the minutes after several days.

 

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[Jimmy-T]

Flatchatty wrote:

They have already did a defective committee meeting to approve the installation by ballot; but they haven’t published the minutes after several days.

Committees can’t pass special resolutions.  But I think if no one is prepared to take this to mediation at Fair Trading, you may as well lie back and take it (and whatever breaches come next).

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Flatchatty

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[Flatchatty]

Jimmy-T wrote:

Committees can’t pass special resolutions.

That is what the strata legislation says, but our strata manager is acting above the law.

Jimmy-T wrote:

But I think if no one is prepared to take this to mediation at Fair Trading, you may as well lie back and take it (and whatever breaches come next).

The SC has the offender, his friend and the SM have created a new set of AGM minutes (without authorisation) and added another friend of the offender. So these member only care about the AC unit to stay and they don’t understand the law. The SM only care about his agreement renewal which these three will sign for him.

There is only one SC member who is aware of the legal framework and keep raising the legal issues. In doing so, he became the no 1 enemy of the other 2 members, the fake member and the strata manager.

But he is planning to go all the way to NCAT and Fair Trading, but he’s worried about the cost to hire a lawyer for NCAT which will have to take himself as an owner.

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[Jimmy-T]

Flatchatty wrote:

he is planning to go all the way to NCAT and Fair Trading, but he’s worried about the cost to hire a lawyer for NCAT which will have to take himself as an owner.

Action at NCAT must be preceded by a mediation at Fair Trading. At the mediation, it will become apparent to them that they do not have a legal leg to stand on.  If they still defend the case at the Tribunal, you can ask that they have to pay your legal costs on the grounds that they knew they had no defence.  Make this clear at the mediation that this is your intention. Talk to an experienced strata lawyer NOW about your options.

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[Jimmy-T]

tina wrote:

If you are an owner, you can apply to Dept of Fair Trading for a free mediation session.  You can also apply to NCAT for a hearing.

If you want to take a case to NCAT, you MUST first attempt mediation at Fair Trading, with very few exceptions.

 

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[tina]

@Flatchatty, You can initiate mediation / NCAT proceedings yourself.  You don’t have to wait for a strata manager or Strata Committee to do it on behalf of the owners corporation.  The application forms are on the Dept of Fair Trading’s web site.

The strata manager is wrong for these reasons:

1. It is their job to know the Strata Schemes Management Act 2015 (NSW).
2. Section 110 does not apply to this air conditioner.  Read Section 110.  There is a list of things that comprise “minor renovations”.  There is a second list of things you can find in the Strata Schemes Management Regulation 2016 Section 28 which are also “minor renovations”.   Reverse cycle split system air conditioner is in the list.  However, SSMA 2015 Section 110 paragraph 7 lists what is NOT a minor renovation.  7(b) “Work involving structural changes” and 7(c) “Work that involves changing the external appearance of a lot …“.  It can’t be clearer than that.  If the air con was not visible from outside the lot (e.g. in a rear courtyard), this would be a section 110 minor renovation.

 

The owner with the air conditioner is wrong for these reasons:

1.  The strata manager does not approve an air conditioning installation.  It must be approved by the owners corporation.
2. The strata committee does not approve an air conditioning installation if it does not comply with Section 110 of the SSMA 2015.  It must be approved by the owners corporation via special resolution.
3. The “defect committee”, whatever that is, does not approve an air conditioning installation.  It must be approved by the owners corporation.
4. A general meeting of ALL OWNERS must be held to approve the air conditioning installation.  As far as I can tell, this has NOT happened.  You should contact all the other owners and find out what they think of that air conditioning installation.  It would be wise to find out who would vote to approve / disapprove the installation before a meeting is held.

If you are an owner, you can apply to Dept of Fair Trading for a free mediation session.  You can also apply to NCAT for a hearing.  The NCAT application form is downloadable.  It lists all the orders you can request the NCAT member to make.  You can request an order to have a strata committee removed.  You can request an order to have the air conditioning system removed.  You can request an order to remove the strata manager too.  For each request the form indicates what evidence you need to gather and whether they want you to seek mediation beforehand.

You seem to be very frustrated that the strata committee and strata manager are not doing anything about the installation.  They are trying to pull the wool over your eyes.  Keep all your correspondence.  You can show NCAT that you have tried to point out the illegality of this installation and what the response was.

Earlier in this thread, there was mention of Cumberland Council.  Have you spoken to someone there about this?

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Flatchatty

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