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What do we do if no one wants to be a chairperson ? Is there such a thing as an independent chairperson ?
In Victoria the lot owners must elect a member to be the chairperson of the owners corporation. Without a chair, any committee decisions might not be lawful so they’d be no point in having a committee.
So technically, without a chairperson, the OC could only be run by the strata manager or by the whole OC itself with decisions made at general meetings.
Many smaller stratas (eg 3 or 4 lots) are actually run that way. Rather casual but if no one complains, it just carries on…
SMs charge fees according to their contract of appointment.
I suspect it’s not like others have suggested. That the drain pipe drains only the balcony floors and will be useless to catch any water when cleaning the exterior glass of a glassed-in balcony?
And worse, all the balconies, even the originals, now probably splash water down onto the exterior glass of the glassed-in balconies?
Professional exterior window and balustrade cleaning for the whole building?
It will be expensive but they will start from the top and work their way down. For some buildings there’s no other option.
If it’s a eg split system unit that services your lot only, as seems to be the case, then in Victoria the OC Act states that the lot is responsible for its maintenance.
No OC Rule can change that.
It doesn’t matter that parts of the unit are sited on common property or that its plumbing and electrics pass though common or even other lot property (allowed by implied easements), it’s still a lot responsibility. Victoria is different to some other states/territories in this regard.
Repairs can sometimes be tricky and expensive. It depends on how it was installed. And the lot owner must repair any damage done to common property or another lot’s property.
I agree with JimmyT that there’s probably no legal basis to insist that all communications to the SM go though the chair.
It can for sure be requested to be done that way and might make sense for most matters but I doubt it could be upheld or that a lot owner could be charged for not doing it.
There have been some published VCAT cases of “troublesome” lot owners and they were dealt in other ways. Eg the SM stopped answering their calls and simply forwarded their emails to the committee.
“Is this legal ? Can a unit owner be charged for contacting the strata manager directly ?”
Of course they can’t. Anyone can contact a strata manager directly. It’s up to the SM to decide if the matter should be referred to the committee.
They could try billing you any charge that the SM charges the OC to handle the matter. But that wouldn’t survive if challenged at VCAT. The SM’s fees are subject to a contract been the SM and the OC, not a contract between the SM and lot owners. OCs are actually limited in what they can charge a lot owner. Basically it’s levies and legislated late interest. Anything else is subject to VCAT approval although that doesn’t stop some OCs/SMs from trying.
Some details are here:
“Note: An owners corporation cannot charge a lot owner any other fees or charges, such as an ‘administration fee’, for overdue owners corporation fees.
Further, an owners corporation manager cannot require a lot owner to pay any fees due to the manager under the contract.”
Residential stratas are specifically exempted from WHS Acts around Australia unless they directly employ someone (that means payroll tax, superannuation etc). Most stratas use contractors and so have the same WHS exemption status as private house owners.
What it means is that when work is done on site by contractors it’s the contractor (or their employer, if there is one) that must ensure that by all WHS requirements are met. That might mean that certain qualifications are required and that certain equipment needs to be used etc.
Strata building insurance usually covers lot fixtures and fittings as well as common property. Sometimes this is more than what is legally required but none-the-less some lot property is usually covered. And the lot owner can claim where it is covered.
Strata building insurance does not cover lot contents.
That a screw failed in a lot fixture would not be an insurable event. It’s a defect or a failure. There would be likely no negligence for such an incident and therefore likely no liable party. So repairing the cupboard itself would be a lot responsibility.
But the consequential damage from the failure might be covered by strata building insurance where it damaged common property or other lot fixtures and fittings. Else other damaged lot contents might be claimable on the lot’s contents insurance (if the lot has any).
Special resolutions in Victoria are not all that complicated but they can be almost “mission impossible” to achieve in larger stratas.
That’s because even an interim special resolution needs at least 50% of all lot owners to actually vote and to vote in favour with not more that 25% of all lot owners voting against. It’s not 50% and 25% of the lot owners that decide to vote in a meeting. Interims are finally passed after 29 days during which they can be subject to challenge.
Try getting at least 50% of all lot owners to actually vote in a larger strata! One of my larger Victorian stratas (200 lots) has only achieved that once in 20 years!
But that’s not the OP’s situational with the numbers. And if at least 75% of owners both actually vote and vote in favour, even a special resolution passes immediately. In an 8 lot strata, that’s 6 lots actually voting and voting in favour.
In my experience, the best way to deal with such owners is to make sure that all OC decisions are made exactly according to the OC Act. If they are, then even the Strata Manager should be supportive of them.
So download a copy of the Act and check that your processes are correct. Especially consult Part 4—Meetings and decisions of owners corporation. And s.74 Who can convene a special general meeting? As the committee chair resigned, consult s.104 Casual vacancies on a committee first if you wish to appoint a new chair.
Depending on the amount of the special levy, a special resolution of the OC might be needed. That’s in s.24 of the Act.
If a special resolution is not needed, even the committee usually can strike the special levy. And certainly an ordinary resolution of the whole OC is valid.
All meetings can be by poll and via email but correct notifications must be given and communication methods used. As per the OC Act, the Electronic Transactions (Victoria) Act 2000 allows email communications but an owner must have consented to use email. As per the Electronic Transactions Act, that consent can be inferred – meaning if an owner has previously corresponded by email with the OC, they have inferred that email is acceptable.
Water damage to common and lot property and what’s covered by the OC/BC’s compulsory building insurance is a bit complicated.
AFAIK and in my experience from being involved in quite a few insurance claims it tends to work as follows:
1. Liability for any water damage usually requires establishing negligence.
2. For a burst pipe or water from storm damage, establishing negligence is often impossible, so usually no one, including the OC/BC, is deemed to be legally liable in those situations. Letting a bathtub overflow or failing to maintain a gutter might be deemed to be negligent so there could be liability on a lot occupier or the OC/BC in those situations.
3. The OC/BC’s compulsory building insurance usually covers much more that just common property. It also tends to cover building elements that can belong to the lots including lot fixtures and fittings. It does not cover lot contents.
4. If a burst pipe occurs for which there is no liability, the affected parties have to repair their own property. So the OC/BC must repair common property and common contents while the lot owners must repair lot property and lot contents.
5. The OC/BC’s building insurance generally won’t cover the cost of repairing the burst pipe itself. But it will usually cover the consequential damage caused to insured building elements and common property contents. Both the OC/BC and the lot owners can choose to claim on the OC/BC’s compulsory building insurance for items that are covered by the policy. That can include lot fixtures and fittings but not lot contents.
6. If a water leak occurs for which there is liability due to negligence, the affected parties can either claim on their own insurance or claim against the negligent party. If the OC/BC was deemed negligent, the legal liability cover in its compulsory building insurance should hopefully cover any successful negligence claim made against it.
7. If an insurance claim is made in the above situation, the insured party forgoes any further right to claim from the negligent party. The insurance company gets that right. OC/BC insurers will not further purse negligent lot owners as they are members of the OC/BC but they have been known to further pursue negligent tenants.
8. Who pays the excess in the event of an OC/BC compulsory building insurance can vary according to legislation that differs around Australia and sometimes is decided by the OC/BC (eg at each AGM).
It’s complicated, so no wonder it’s hard to understand!
In Victoria, both the OC and the Committee can strike a special levy. Where the special levy exceeds the double the annual budget, a Special Resolution is required (s.24).
So, unless a Committee spending limit has been set by an Ordinary Resolution, up to twice the annual budget can be raised as a special by the Committee alone.
No additional formalities are required for Committee meetings that are considering striking a special levy although a good Committee would be keeping all owners informed.
The strata lenders should be able to tell you what their current interest rates are. Whenever I’ve checked they have been quite high. I think it’s because the loan is not secured against an asset (like a mortgage).
Don’t forget that special levies can be raised in installments. So a $7,000.00 special levy, at $875.00 per lot, could be raised over a 6 or 12 months period in 2 or 4 installments which might be easier for lot owners to manage.
It can also depend on when the works need to be done and when other major items of routine expenditure, such as insurance, occur within the scheme’s financial year.
Most strata schemes in Victoria don’t have separate administration and maintenance (sinking) funds which gives them a bit more flexibility on how funds are raised and spent during the scheme’s financial year.
For Victoria when it states “Interior face”, that includes all the interior surfaces of a lot’s airspace including its outside airspace areas. You have to think of a lot’s outside airspace areas, such as a terrace or a balcony, like a bathroom. All the walls and floors surrounding a lot’s outside airspace will be a lot responsibility to waterproof if surface waterproofing is used eg by a waterproof membrane.
But check the Plan of Subdivision to ensure the leaking wall actually is a lot airspace boundary wall.
If interested, it’s the Subdivision (Registrar’s Requirements) Regulations 2011 VIC that covers this area.
An excerpt:
<span class=”wcrep2″>(4) Unless otherwise specified on the plan, the location of any building boundary defined as—
(a) Interior Face lies along the interior face of any wall, floor (upper surface of elevated floor if any), ceiling (underside of suspended ceiling if any), window, door or balustrade of the relevant part of the building. Any internal coverings, waterproof membranes and fixtures attached to walls, floors, and ceilings are included within the relevant parcel;</span>“Internal coverings” doesn’t mean “inside coverings”. It means internal to the lot airspace.
I agree with Jimmy-T but point out:
It won’t be s.49 (Cost of repairs, maintenance or other works) of the OC Act that applies because that section is about cost recovery when the OC has already paid for the works.
It will be s.24 (Extraordinary fees) that will apply. That’s when an OC raises special levies. But the “benefit principle” still applies in s.24.
Also, if the works are being done and funded over time in stages, with all lot windows either planned to be replaced or have already been replaced, it’s likely that the “benefit principle” won’t apply at all.
Is it even a formal, General Meeting, poll vote?
If it’s a formal GM vote then, if there’s a quorum, the majority vote wins. If it’s a tie, in Victoria, the Chair has the option of a casting vote. With no quorum it’s an interim resolution.
If it’s just an opinion poll for the committee, it’s up to the committee to act on the results.