[Austman]

@JimmyT said:

I am getting a bit weary of this “legal right” argument. Do I have the legal right to express an opinion in public? Yes, I think I do. Is my “freedom of speech” defined in Australian law? No, I don’t think it is. By your logic, that means I don’t have the legal right to express an opinion

I hope I’ve explained it.   Everyone has a right to express an opinion and make a noise about community issues they are concerned about. Absolutely.

But when a 3 or 5 member strata committee claims to represent 10 or 50 or 200 or more owners on those same community issues?  That’s the question.   Within the OC Act, a strata committee actually does represent all those 10 or 50 or 200 or more owners if all the allowed functions and powers of the the OC have been delegated to it.  And that has been done at every AGM I’ve attended in the past 37 years.  But beyond those functions and powers?

Sir Humphrey said

And then Part 3 and elsewhere in the Act provides more detail. I would argue that s.16(1)(c) covers comment on development proposals in the neighbourhood.

I think you might be over interpreting S.16(1)(c)?  That function exists in Victoria too.  I think it means the other laws have to specifically give that power to an OC.

As it turns out, at our committee meeting I stated my concern that the issues might be outside an OC’s functions as stated in the OC Act.  And if so they’d be outside an OC committee’s functions too.  The other committee members agreed and will approach council as a group of concerned rate payers.  The issue and decision was put into the committee meeting minutes and sent to all owners (and even to tenants that have given me their email address).  They can get involved too as they wish!

[Austman]

 As stated, I’m not against OCs getting involved in neighbourhood or community issues per se, although I can’t see where it’s part of their functions in OC Acts. What I’m concerned about is OC committees that claim to represent all the owners in the OC doing that without even consulting the owners. That’s what I mean by the “as the legal representative” of the OC  – which committees are.

I’ve looked though the legislations in VIC, NSW and ACT. I can’t find anything that supports such committee actions. And, as others have pointed out, the issues might even concern moral values.

As for the argument that just because the legislation doesn’t mention it, doesn’t mean it’s not allowed: at least there are some legal opinions on that. And so far, the ones I’ve found are not very supportive of that view. An example:

committee members liability

What should strata committee members do? Some suggestions:

Always check that actions being taken are authorised for a strata committee under the SMA or other relevant Act. If in doubt as to whether a resolution of the owners corporation is required, obtain it.

The legal opinion above also suggests that if a committee acts beyond its authority, it might even void office bearer liability insurance!

IMO if there was committee decision to write a letter on a neighbourhood or community issue to council viz:

On behalf of the 24 owners in strata plan 123, the Owners Corporation Committee requests the council to … 

That will be beyond a committee’s authority unless the OC has approved it. But that’s what’s being proposed. I’m not going to support that.

As a side note on checks and balances. In VIC, notifications and minutes of committee meetings need only be sent to committee members (not to owners) and there is no requirement for a notice board. Owners in VIC can be quite unaware of a committee’s activities unless they specifically ask or check the OC’s records.

It’s not how I behave as an OC chair in VIC. I insist on sending out committee agendas and minutes to all the owners, but it is the way other OCs in VIC (where in those I am an owner only) behave.

[Austman]

On the same-sex issue. I’ve noticed that many houses in my area now have large posters in their windows that voice their views. It’s clearly a statement that the occupants of the house have the view as stated on the poster. 

Should an OC committee be allowed to decide to put such a poster on the common property? My OC has several large common property street windows that would be ideal to display the committee’s views.

I’m not against committees having a view on neighbourhood or even social issues. But where the OC Act doesn’t specifically allow it, I think they should refer the issue back to the owners first. 

Tribunals and courts have issued countless rulings about committees overstepping their authority.

And I’m sorry to harp on the matter but one of my committee members wants the committee to contact the council as the legal representative of all the owners about some matters where opinions are likely to vary. I don’t think that’s right at all.

[Austman]

It’s interesting to note that, in Victoria at least, 1,000s (probably 10,000s) of OCs exist simply because some lots share a driveway.  In many cases there’s absolutely no other reason – it’s just because of a driveway.  Not all strata schemes are apartment blocks.

Does simply sharing a driveway, and absolutely nothing more, give an OC committee the legal right to represent all the lot owners on matters that don’t directly relate to the common property in that strata plan?  I sure hope it wouldn’t!

And I have friends living in strata Plans of Subdivision where only some of the lots are members in an OC.  For other lots (they don’t share any common property at all) there is no OC, so no committee, no meetings, no levies – absolute zip.  And the OC committee that does exist in the same Plan of Subdivision has absolutely zero jurisdiction over the lots that are not part of the OC.   Yet all the lots were built at the same time, are part of the same Plan of Subdivision and even share the same street address.

To me, the above demonstrates the reason an OC is created is very much to do with common property maintenance and not much more.

As for communications and speaking out etc. I’m both a resident and a non-resident strata owner. I get addressed letters from councils re community matters for all the lots I own. I’d agree though that I don’t always physically see what’s happening in the neighbourhood of all my lots.  So I might appreciate a committee informing me about neighbourhood issues that concern them.  But I’m not so sure that I agree that a committee should be allowed to automatically legally represent me on those issues.  They can speak out if they want, as residents and ratepayers but I’m still struggling to see how they can legally say they represent the views of 190 owners (as is the case in one of my OCs where I am a committee member) on matters not defined by law as a committee’s function. 

[Austman]

Puddn said
Without consultation with the wider community, this committee is acting without ‘authority’ – in my view.

That’s my concern too.  I’m much more comfortable making committee decisions that clearly fall within it’s functions as defined in the OC Act.

Puddn said
Austman – my experience tells me that your committee is taking the right approach by placing a motion on the next meeting agenda. It is now up to you and other owners to have your say.

If enough owners agree with your point of view, then I doubt the committee would adopt the motion. If no-one objects, then the committee will likely feel it is ‘authorised’ to make an assumption that owners approve…….?  

The proposal at the upcoming committee meeting is that the OC committee contact the council about the neighbourhood issues.  I’d be more comfortable if either all the owners were first consulted or that any approach is done as a group of rate payers rather than as the legal representative of the OC.

[Austman]

If OC committees can and should be involved in neighbourhood issues, it’s how they can do that that’s also my question.

Can a committee, without even consulting all owners, say to the council that it legally represents all OC owners on a neighbourhood issue?  Because that’s what’s being proposed.  And if it can, where is the line drawn on the types of matters (local, state, federal) a committee alone can decide on behalf of the OC?  Is it purely at the committee’s discretion?

@Sir Humphrey said:

… the ACT. Here, in the absence of a general meeting resolution directing it, the executive committee “exercises the functions of the Owners Corporation as it considers appropriate”

Thanks Sir Humphrey.  That’s the sort of reference I’m looking for.  I’m a strata owner in the ACT as well.  But just above that, in the Unit Titles (Management) Act 2011, is a list of committee functions.  It’s pretty clear to me that there are considerable limitations.  And Part 3 Functions of owners corporations lists exactly what an OC’s functions are that committee can exercise.  Again they are quite limited.

At the upcoming committee meeting I think I’ll propose that if agreed, the committee makes all owners aware of the neighbourhood issues.  And if enough committee members feel concerned enough, that they form a group with other owners and neighbours to approach the council.

[Austman]

@Lady Penelope said:
Why not try both!  

Because I think the committee could be acting beyond its authority, outside the OC Act, if it claims to represent all OC owners on general neighborhood issues.

In the very few times that a council has contacted my OC/BCs directly, it’s been about OC owned property issues.

Yet I receive, individually as a rate payer, every couple of months, council letters seeking my views on various neighborhood issues.  Street traffic changes, park upgrades, nearby planning applications etc.  They even sent one out about the street lighting issue that the committee member is concerned about.  All OC lot owners and neighbours would have received the same letters.  So to me, it seems that councils want to deal with individual rate payers on these matters anyway.

Of the three issues the committee member is concerned about, only on-street parking line markings could be considered straightforward maintenance.  The other two issues are certainly subject to opinion.

[Austman]

@Lady Penelope said:
My two cents worth … and from experience …. after successfully getting a Material Change of Use development knocked back that adjoined my scheme in QLD due to all of our owners writing separate letters, sometimes the ‘thick file’ principle works.

Thanks for your input.  We currently have a planning development proposed for our adjoining property.  And being in the inner-city, it’s actually physically adjoining! 

Their proposed works might even require a protection order for our property as they are planning a one floor excavation to add a cellar right on the border – beside the foundations of our building.

As that’s an issue that potentially affects common property I see it very much a committee issue.

But for general neigbourhood issues, I’m not so sure a strata committee can get too involved as the representatives of all the owners.  I think it’s more for individual owners and neighbours to get together.  So a committee suggestion that all concerned owners write to the council might be the answer.

I think though, as Jimmy T suggested, the committee member thinks a letter from the OC committee will have more “clout” with council than letters from some individual owners.

[Austman]

I agree with Sir Humphrey.  It can very much depend on the SM.

I’ve been involved with countless strata managers in several states and many strata schemes over the past 37 years.

Some of my best SMs were not all that strata savvy.  But they did know how to be good managers and that’s certainly a very worthwhile credential.   For strata issues that went beyond their strata experience, they consulted with more experienced SMs.

The best SMs are of course those that understand both management and strata.

[Austman]

@JimmyT said:
I take a different view for two reasons. The first is that the strata committee represents a powerful and considered opinion.  The matter has been discussed and a consensus reached so it can’t be so easily dismissed as the rantings of your run of the mill, common or garden, loony grumbler.

Secondly, after years of telling your residents that you (collectively) know best and that you will look after the best interests of the building and it’s residents, it’s not helpful to say that anything outside the front door but in the immediate vicinity is no concern of the strata committee’s.

 

But that’s not our situation – at least not yet.   It hasn’t been discussed at all – it’s just one suggestion for an agenda item from one committee member.  It might not even be so important to the other committee members, other owners or to neigbouring properties.

And we haven’t been telling our residents for years that we know best on neighborhood issues.

The question is more about is there even the right for a committee to take on neigbourhood issues as the representative of all owners/residents?  When the council informs us from their side about neighbourhood issues they write to individual owners, not to the OC.

When I read the OC Act, (Owners Corporations Act 2006 VIC s.4) titled “Functions and powers of owners corporation” nothing about neighbourhood issues is there.  It’s seems very clear, at least to me, that it’s all or at least mostly about common property. 

I question if a strata committee alone is even legally allowed to represent all OC owners on neigbourhood issues. Is it overstepping its authority?  I suspect it might be.

[Austman]

It was compulsory viewing for everyone who lives in or owns a lot in a multi-storey strata.

The combustible cladding is of course the major issue.

But I noted other issues touched on included overcrowding and factors like clutter and storage in inappropriate areas. Fires have been started not only by cigarettes but also by equipment like air conditioner compressors.

Many strata buildings have such equipment on balconies, in car parks or elsewhere on common property.

There’s a lot advice available on some of those issues eg:

a-warning-about-the-fire-risks-of-clutter

Keep-your-balcony-safe-from-fire

I think too, that the effectiveness of modern fire safety systems (that Grenfell unfortunately didn’t have), if properly maintained and not compromised by other factors like overcrowding, was demonstrated.  That part at least was reassuring.

[Austman]

@Lady Penelope said:

 

It is for these reasons that the Tenant should have the authority to undertake the repair of the letterbox lock and go through the Agent rather than the Strata Manager to seek compensation.  

In apartment buildings it’s not even property that belongs to the lot. It’s a common property facility maintained by the OC. It’s the same with building foyer locks and any other common building facilities.  Not even a lot owner has the authority to repair those themselves.  So while the lot owner has the responsibility to get them fixed for their tenant under the RTA, those repairs have to be done through the actual owner – the OC.

A letter box lock might not be so important, I agree.  But foyer locks and the like are a different matter.

I’ve been though the situation several times with tenants “repairing” common property locks themselves.   It has ended up causing issues for everyone – the OC, the lot owner, the owner’s agent and the tenant or the next tenant.

A letter box lock might not matter so much – although some OCs use a master keyed system for letter boxes.  But I’d draw the line at allowing a tenant or even a lot owner to make other unapproved common property repairs.

[Austman]

AFAIK while urgent repairs are certainly part of RTAs – allowing a tenant to do the repair to the LL’s property – I can’t seem to see where they are part of OC Acts. 

I’m not sure a common property letter box lock would be classed as “urgent” anyway.

In all my stratas, there is an after hours number to call for emergencies.  And they arrange any genuine urgent/emergency repairs.

I sure hope they would accept a call from a tenant!

IMO this situation is both the Strata Manager and the LL’s agent behaving badly.

[Austman]

The problem here is that letter boxes are common property.  I’ve not yet seen an apartment letter box that’s part of lot property on a strata plan.

And owners/occupiers are not supposed to repair common property – at least not without the OC’s permission. And the OC/Strata Manager won’t even talk to the OP.

Still, I agree it seems a relatively simple thing to just get the lock fixed by a locksmith and worry about the OC/LL’s reaction later.  If the OP is willing to do that.

But the question of the thread is still valid though.   That’s about being able to contact the OC/Strata Manager.  And there will be other situations that are not so simply “solved”.

[Austman]

If the matter is about a common property repair, I can’t see anything wrong with any occupier contacting the OC directly.  All occupiers have rights under the Strata Acts.

For tenants in NSW some information on how to do that is here (it’s a bit out of date):

https://www.tenants.org.au/factsheet-13-strata-scheme-tenants

A Strata Manager might be a bit reluctant to organise repairs without getting committee approval, but IMO they shouldn’t simply reject the request because it’s from a tenant.

As an OC chair, I’m always happy to deal directly with tenants about issues in our building.

[Author]

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