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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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[Flatchatty]

tina wrote:

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

No. But the installation is on the primary building façade, it is not screened, and is seen from the street. It is even seen from the main street (>150 meters away).

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[Flatchatty]

Thank you Jimmy and Tina for your inputs.

First, I’m not frustrated. I am calm, collected, and I know that the strata manager (SM) has made very bad mistakes.

I have just finished my Cert V in Strata Management so I am well  aware of strata legislation.

There is one SC member (Mr Jhon Doe) that I’m helping on this case. But my qualifications are no substitute to your valuable experiences. This is why I’m sharing this case here.

John Doe was the first to raise the breach with the SM. The SM promised to send a formal letter to the offender. But soon after asked John to sign a premature contract extension. John ignored that email since it’s irrelevant to the thread and they still have about a year in the current contract.

It appears soon later, the SM found out that the offender was a Strata Committee member. So he claimed that he needed to seek a solicitor advice to deal with the breach (note this is a textbook breach under S111 of the SSMA 2015).

A week later, the SM emailed John saying that offender is a committee member (a known fact as the scheme is very small) and said again that he would send the “letter”.

The SM appears to lean towards the offender. So he chose the easiest way to deal with the breach under s110 as a “minor renovation”.

However, he had a problem. The predicted vote was a tie and approval would fail. So the SM needed numbers in the committee, so he created another version of the AGM minutes and added a friend/sympathising owner with the offender to the committee to get the majority that he needs.

Although, this was enough, the SM even claimed that the offender had the right to vote on his own AC unit installation.

Lately, the SM circulated a meeting notice asking the committee to vote. While the email only mentioned the retrospective approval of the AC, the notice included another motion “to accept minutes of a meeting”.

Most people would print the ballot page, tick numbered boxes without noticing the extra “motion”. In addition, there was no attached minutes to consider, and there was no known prior meeting.

Moreover, the notice was riddled with defects, including wrong offending lot number, description of the works as “minor to the kitchen” and no mention of external installation on a common property wall/façade although the attached photo to the notice showed otherwise.

Mr John, put the SM on notice about the errors in the meeting notice and asked him not to publish any minutes related to the defective notice.

However, the SM published the minutes, and they were shocking:

• The offender voted on their own AC approval
• The newly added member voted although the new AGM minutes are still disputed.

There is still no clarification on what that extra motion was for.

There are many issues in this case. What do you think, flatchatters.

Thank you very much in advance for your valuable advice.

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[Chloe]

Hello flatchatters,

I came here regarding a committee member (who is good friend with the strata company) who installed a new aircon without authorisation. Our case seems very similar to this case here.

I don’t see any more replies here. Does it mean that the strata manager can break the law like it is described in this post and get away with it?

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[Jimmy-T]

Chloe wrote:

I don’t see any more replies here. Does it mean that the strata manager can break the law like it is described in this post and get away with it?

Sadly, many people come here for advice, take it (or don’t) and get a result which may be good or bad – but never come back to tell us what it was.

A subsequent question about taking action against a committee member who breaches by-laws has been moved  to HERE.

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1 user thanked author for this post.

Chloe

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[Flatchatty]

There has been no update, and I haven’t stopped following this thread for any input.

The strata manager is getting worse since other owners could not see or understand the governance issues.

John tried to convene a general meeting but other owners are not interested. Some owners think that the whole issue is the unauthorised AC unit which they see as not a big issue.

It seems also that the strata manager is talking to other owners privately and trying to paint John as difficult, unreasonable and making unecessary noise. However, the fact is that John was the only one who paid attention to the rot and tried to deal with it.

It seems that the only option is fair trading mediation and then NCAT. But John is aware that this would cost all owners as the strata company would use the OC money for their legal costs.

What are your thoughts?

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[Jimmy-T]

I should have offered the third option – nothing has changed (as in this case).

In your position, I would try to tell other owners that by ignoring this issue, they are making themselves vulnerable for future expenses – such as, if a new owner buys the apartment and demands that the owners corp maintain the A/C as it is on common property.

As for costs, a majority of owners can instruct the strata committee NOT to hire lawyers and make it clear that if they do so, it will be at their own expense.  The law is unusually clear on this and any owner at any time can raise the issue at NCAT and can even take the committee to the Tribunal for failing to fulfill its duties under the law.

I wouldn’t waste another breath on arguing the point.  Take it to mediation (which is compulsory) then to NCAT. And get the complicit committee members and strata manager removed while you’re at it.

 

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Flatchatty

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[Flatchatty]

Thank you Jimmy, your input is much appreciated.

Jimmy-T wrote:

And get the complicit committee members and strata manager removed while you’re at it.

Can you please provide more details on this point.

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[Jimmy-T]

As detailed in this post, you could put up a motion to a general meeting  or committee meeting that the committee or strata manager be instructed to pursue any owner for specific breaches of by-laws.

If they fail to do so, Section 232(2)(e) of the Act allows owners to take action against the owners corporation (or committee) for “an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme.”

This is something you would have to pursue yourself or in conjunction with other aggrieved owners.  There are no StrataKops who will do this for you.

That said, the simple act of applying for mediation as a precursor to an action under Section 232 would probably have a galvanising effect when the facts of strata life are laid out for all concerned.

Meanwhile, Section 35 of the Act allows a simple majority of owners at a general meeting to remove a committee member from the committee.

Section 45 of the Act allows a simple majority of committee members to sack an office-bearer by declaring an “office” vacant and electing a new member to fulfil that office (but they can remain as committee members).

Section 238 of the Act empowers the Tribunal to remove a committee member at its discretion or at the request of an owner or owners.

Bear in mind that any or all of these could have the effect of

1. Making the owners and committee members aware of their responsibilities and

2. A declaration of war.

However, if the committee’s argument is that they don’t want to do anything because it might cost the scheme legal expense, that excuse evaporates as soon as you say “I’m taking you to the Tribunal anyway”. It’s the old argument of, do the right thing and get on with it, or  be forced to and pay the additional expenses of trying not to,  but have to do it anyway when you lose.

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Flatchatty

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[Flatchatty]

There have been some worrying updates.

John has requested access to the strata roll for a “Qualified Request”.

However, while he was waiting for access (for ~3 weeks), the Strata Manger called a GM.

The GM main two objectives are:

• to vote that the altered AGM minutes reflect the events of the AGM (which is false) and contradict John’s sworn document that those altered minutes were not consistent with the events of the AGM.
• Renew the manager’s agreement.

What can John do now?

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[Jimmy-T]

Flatchatty wrote:

The GM main two objectives are: to vote that the altered AGM minutes reflect the events of the AGM (which is false) and contradict John’s sworn document that those altered minutes were not consistent with the events of the AGM. Renew the manager’s agreement. What can John do now?

In the first instance, propose and amendment asking that anyone who was not at the meeting, who can therefore not confirm or deny the accuracy of the proposal, recuse themselves from voting.

Regarding the manager’s agreement, ask that it be deferred for three months until the veracity of the SM’s amended minutes can be determined.

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[Flatchatty]

Jimmy-T wrote:

In the first instance, propose and amendment asking that anyone who was not at the meeting, who can therefore not confirm or deny the accuracy of the proposal, recuse themselves from voting.

This is counter productive knowing that the majority is comprised of the conflicted member and his 2 friends (one of them is the fake committee member.

Jimmy-T wrote:

Regarding the manager’s agreement, ask that it be deferred for three months until the veracity of the SM’s amended minutes can be determined.

All requests to the SM are now being ignored., and the GM is going ahead on the agency’s terms.

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[Flatchatty]

UPDATE:

• The general meeting called by the strata manager to confirm the disputed AGM minutes and renew their management contract went ahead. However, both their motions were defeated.
• An EGM was called through a qualified request. In this meeting, the OC confirmed the official AGM minutes, and resolved that the later version was unconfirmed and not to be relied upon. The OC also superseded the previous committee approval the AC unit. In addition, the OC removed the conflicted members from the committee and installed a new committee.
• A notice was sent by the new committee to the offender informing them of the OC decision and asking them for supporting documents. The offender refused to provide any documents and insisted that their installation was approved and that they follow the strata manager’s instructions and ignoring the EGM resolutions.

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[Author]

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