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Unfortunately retrospective motions are an acceptable practice. Apparently they occur quite often as a way to cure a past defect / irregularity or a procedural failure.
Not getting permission / a special by-law before starting the work is a type of procedural failure on the owners part.
What is interesting in your scenario is what happens if their motions fail; then the defect is not cured.
Can you bring the approval motions forward to an EGM rather than wait for the AGM? – and ask they (the renovators) pay for the meeting. An EGM can be held in a mater of weeks if the EC really wants one.
Without knowing what your by-law says, would you consider
- seeking an interim order to have the work stopped
- trying to have the EC / manager send a notice to comply to the existing by-law stating all work must stop until approvals are determined by the OC. This way if they continue the OC can have a go at having the owners fined for failure to comply with the notice if they continue.
I personally think that it is rubbish that some owners just plough forward knowing they are not doing things the right way an then expect the whole OC to roll over and approve whatever they did via a retrospective motion.
I can feel the frustration in your post and the disappointment you have in the “management” of your SP. What is going on is just plain wrong yet the system makes it such an easy thing to get away with – strata has its downsides.
I think your personal idea is worth a go … i also think other options are also worth ago.
We all seem to agree that change is in order. The new “super tribunal” idea is about potentially incorporating CTTT into something even bigger.
Most submissions either opposed the idea or thought the idea would only work under certain circumstances; those circumstances were generally about having specialists deal with specific areas.
I recommend you have a look at the SCA submission. It was far from what i expected from the peak management group but it did recommend that the strata division be specialized.
What i found interesting about the specializing strata idea is that some of the current CTTT member are from the former strata schemes board and these are some of the Adjudicators/Members i have seen make terrible statements and rulings.
I agree that in some (possibly many) cases a strata savvy EC member/good strata manager & strata lawyer would be much better at dealing with strata matters.
One thing i will say is that i know of some SP's who have entrenched EC members who have served (self-served some might say) for many years and these people have a very poor knowledge of the Strata Act (SSMA).
I am also well aware of some pretty ordinary strata managers; i have no idea how these people get or keep their licenses.Keep skinning the proverbial strata cat Jimmy T
Hi awinner
Based on what you write i would agree with the strata manager (SM) that the stand alone hws in a townhouse is the owners problem if an issue arises.My initiate feeling when i read the post was that the motion to have the OC pay for the owners hws seems out of order as the responsibility lies with the owner of the town house, not the OC, but i then felt the owner with the 5 units was probably the Chair of the AGM so ruling the motion out of order was not in his interest.
In fact if he was ethical he probably should have excluded himself from voting given he was going to derive “financial benefit” from the motion if it passed; in that case there would have been one vote against (you), none for and 5 abstaining; motion lost.
Is it legal ??? I am more inclined to ask can he get away with it.
It is bogus at best and is a matter that could easily be destine for CTTT if you and he are the only owners involved in the running of the OC.You should seek to find out how the other owners feel about paying for his hot water service.
Do you feel this owner with 5 units would pay 5/16 of someone else's stand alone hws if it went on the fritz? If you do not think so then you can use that in your argument to get others involved.
You also need to ask yourself is this worth pursuing. You can pay 1/16 of the cost of this blokes new hws or you can spend $x trying to get an equitable outcome from an unreliable dispute resolution mechanism (Office of Fair Trading & CTTT) and end up paying for both if things do not work out. I would like your chances of getting the resolution invalidated by CTTT but CTTT are not predictible so i really have no idea what would occur if they got involved.
You will be out of pocket for going to OFT and CTTT even if they do determine the resolution was “illegal”.
It sounds like this bloke has used his dominant position to look after himself and have the OC pay for an expense that is not genuinely the responsibility of the OC. That in itself should be enough to encourage other owners to give you a proxy in future to keep their levies lower.
The question is do you want to pursue this matter or just have people tell you the other bloke has stuck the OC with an expense that was actually his.
I found it interesting that there are some submissions that say little more than “i do not support the concept of a super tribunal”. Some other submissions are 50 pages. I just thought Jimmy T, “the only credible show in town”, might have expressed a view … no need to write a book.
I am yet to read anything in this forum on whether you support a super tribunal or not; but then i do not read everything.
The standing committee did not selectively seek the opinion of SCA, OCN, or CTTT yet these groups make submissions, the Law Society of NSW and many others made submissions. None of these opinions were selectively sought. Standing committees call for submissions, they do not personally ask anyone even if they are the only credible show in town; whose influence motivates the Minister.
They ask everyone and you were included in the open invitation. To be honest i thought the most credible show in town would have had something to say about it. You as much as anyone know how these things work; better to say something even if it is as simple as “yes i support” or “no i do not support”.
I feel this forum is one of the better strata forums and can understand your desire to comment at a latter date without any hint of sour grapes – hence no Jimmy T submission, fair enough, but given your opinions are so widely known then won't people think any negative commentary you do make in a future comment is just some sort of sour grapes anyway?
May you have success skinning the “strata cat” your way.
I have been having a look at some of the published submissions to the Standing Committee :
One thing a lot of submissions have in common is the idea CTTT are not very good at what they are doing, regardless of which CTTT division one is talking about. That should come as no real surpise to Flat-chat readers.
What i found interesting is that there is no submission from anyone named Jimmy T – unless it is one of the confidential ones or one of the name has been withheld submissions.
Also interesting was that SCA (Strata Community Australia (NSW)) support a new super tribunal provided ……
I can see someone getting up in Parliamnet saying SCA support the idea and not making any mention of the “conditions” that SCA feel are needed if a Super Tribunal is created.
I would ask that SCA looks back at the old Strata Schemes Board and its record. It was not as rubbish as CTTT so i would then ask does SCA really believe a newer Super Tribunal would improve things given the last Super Tribunal (CTTT) only made matter worse.
I appreciate what SCA are saying and believe if the conditions they talk about were implemented then a new Super Tribunal might be an improvement but who actually believes the conditions would be implemented.
What i completely agree with is the strata division becomes a specialist area. This same idea is promoted in several other submissions and across various other divisions of CTTT. It seems people want CTTT members to be specialists in specific areas and the specific areas to be specific.
Isn't it curious that it was, in a way, specialist areas that all got put together to create CTTT; now people want to somewhat segregate the divisions within the CTTT. It seems the “Super Tribunal” (CTTT) is not so super.
I recommend browsing some of the submissions – they are interesting.
We have a Yahoo Group. It is moderated by an owner and it is allegedly open to all residents.
It has never degraded to a free for all to abuse each other but the moderator happily denied access to anyone who is not on-board with the mantra expressed by himself.
Due to the clique nature of membership to the group the participation rate is less than 25% of the SP.A social page has pros and cons.
JimmyT said:
FlatChatFan – I don't think BB is saying this member adjudicates on actions brought against him; just that the fact that he is a member of the CTTT means that he can't lose (BB will correct me if I'm wrong)…………….
We have to balance the right to a fair result with all strata owners' rights to choose how imperfect their world is …….
Jimmy is right, the member (M) in question does not sit on his own cases but it has been said that the member (M) talks to other members (including the member, or adjudicator, hearing the cases that the member (M) is respondent in). It is also said the member (M) has convinced other members there is no problem in “his” SP except a serial complainer but from what some of the residents say that is not the case.
I have a little trouble with the idea that the owners have a right to choose how imperfect their world is. It creates a great deal of diversity in how well Strata Plans (SPs) are run depending on how lay-back the “majority” allow it to be. It also makes it hard to know what someone is buying into.
I know a buyer can do strata searches and get pre-pruchase reports, and the like, but these enquiries do not always reveal the underlying culture in an SP.I prefer the idea the Strata Act is applicable to every SP; i.e if the Act says something is required it should be the case that every SP that that rule is applicable to does follow the rule — and CTTT enforce the rule.
Giving SP's a choice of how imperfect they want to be is not what CTTT says in some cases;
“The legislation has always envisaged that generally, strata schemes would be managed by ordinary lot owners for their own benefit. Even with the involvement of professional strata managers, achieving managerial perfection is not easy. Mistakes are made. The important thing is that they are recognised and not repeated. “
J Bordon: Nulama Village P/L v Owners Strata Plan 61788 (Strata & Community Schemes) [2006] NSWCTTT 550 (25 September 2006)To me the above says that the same rules apply to everyone and everyone should at least be trying to meet with them.
“More commonly than otherwise, members of Owners Corporations are laypeople. They, just as the very few who would be lawyers, must provide proper management of a strata scheme.”
G Durie; Senior Member CTTT. Bushby v Owners Corporation SP 64939 (Strata & Community Schemes) [2009] NSWCTTT 70 (25 February 2009)Again it seems that the same “standard” is applicable to all SP's and it is not for SP's to choose how imperfect they want to be. I could cut and paste CTTT quotes all day. I could revisit 2005 when the legislation regarding sinking funds was changed primarily to stop SP's choosing not to plan for the future. Historically it can be seen that owners do not regularly make good choices for financial reasons, for friendship reasons, for power reasons …. and so on.
The idea of giving laypeople and the ignorant the option to choose their level of imperfection is not a good idea. If owners have the right to choose how imperfect their SP is then there is no real framework for the whole concept of strata; there are just a whole bunch of little kingdoms in which the subjects set their own level.
I think most SP give compliance to the Strata Act a good go and do a half decent job. An effort that keeps the owners out of potential trouble. I think if one looks at these SP's there is a genral pattern of doing the same thing; i.e. they are not all doing their own thing, not setting their own level, not choosing their own level of imperfection. They are all shooting for the same thing – responsible, compliant, managment.
There is the need for some autonomy in SP's but choosing how imperfect they want to be should not be within the power of SP's. I believe the power to make by-laws applicable to the particular type of SP is power enough for owners corporations.
Just how much an SP should be allowed to get away with is a very debatable subject.
Jimmy wrote:
So at the the risk of banging the same old drum again, here in no particular order and based on six years of emails to the Flat Chat column and postings on the website, are what we reckon the main issues are.- Lack of consistency and clarity in decisions
- Too much red tape
- Inability to award costs against serial offenders
- Inability to award costs against serial nuisance complainers
Number 4 bothers me. I am aware of one poster on this forum who has made application after application relating to the management of his block. The poster claims the biggest problem in his building is the dominant figure on the EC. This dominant figure happens to be a CTTT member.
I have inadvertently met this CTTT member and i have on my travels also run into people from the block of units in questions. If I believe the CTTT member then the owner (the poster) is a serial nuisance; if i believe the owners i have talked to then CTTT is corrupt and the member runs the units very poorly.
The block in question is currently trying to have ordered management put in place – how will it look if CTTT order management because a CTTT member was not running the block satisfactorily or meeting the requirements of the Act? (I can't see that ever happening and from what i have read on the posts about the matter, CTTT will not let that happen.)
The point is; is the person (the poster) from this block a serial nuisance? I do not think so, some of the owners in his block do not think so but the CTTT member running the block thinks so and CTTT may also think so.
I will mention that when i talked to the CTTT member he had no idea he was the focus of a topic on this forum. From what he told me i would have no hesitation in saying he is not overly compliant with all aspects of the Act – by his own comments it was clear he does not always strictly follow what the Act says. Interestingly the CTTT member has not lost a case to the “serial nuisance” yet.
Here is my point. Over the last 18 months i have come to the conclusion that about 90% of the Strata Schemes Management Act does not genuinely need to be strictly followed. It is not until failures or lack of compliance starts leading to disadvantage or loss that CTTT feel inclined to act. Failure that are, according to CTTT, of little or no real consequence are not matters CTTT are interested in.
Point 4 above says that there should be an ability to award costs against serial nuisance complainers. A serial complainer could simply be someone who has read the SSMA and takes issue with the lack of compliance in their block. The matters they raise may be innocuous to CTTT but my experience is that innocuous failure lead to serious failures. Non compliance becomes a culture which can lead to unnecessary expenses to the owners and can also seriously devalue a block.
I have watched a presentation from Michael Teys (Teys Lawyers – one of the forums sponsors) in which Michael talks about something as innocent as not holding an AGM within the time frame specified by the Act. This is the type of innocuos indiscretion CTTT is not interested in but is someone who raises several cases relating to multiple equivalent “trivial” issues really a serial nuisance complainer or just someone who wants good compliance?
The current topic found on the home page of Flat Chat is where i lifted the opening comment from Jimmy. The comments go on to imply by-laws should be respected but i feel that it isn't just by-laws that should mean what they say and get respected for it – the SSMA gets little respect from countless SP's (the Flat-chat forum is testimony to that).
I understand where point 4 above is coming from but it is also very dangerous as long as compliance to the SSMA is not considered a priority by the overseeing jurisdiction (CTTT).
Hi Snoopy,
Yes … anyone can be on the EC provided they are properly nominated.From the Strata Schemes Management Act comes the following;
(4) A person is not eligible for election as a member of an executive committee unless the person is:
(a) an individual who is an owner,
(b) a company nominee of a corporation that is an owner, or
(c) an individual who is not an owner but who is nominated for election by an owner who is not a candidate for election.
As you can see in part c) someone who is an owner and not running for election can nominate anyone, this includes nominating people who are one quarter owners.
As a one quarter owner you cannot nominate yourself but other owners can nominate you. There are provisions for co-owners being nominated by the other co-owners;
(5) A person who is co-owner of a lot may not be a candidate for election as a member of the executive committee unless the person is nominated for office:
(a) by an owner who is not a co-owner of the lot, or
(b) by a co-owner of the lot who is not a candidate for election as a member.
Part b) would apply to you if you want to be nominated.
The EC elect the Chairperson so once someone is an EC member then they can be nominated for Chair and the EC vote on the matter.
Keep in mind the following;
A person is not entitled to move a motion at a meeting or to nominate a candidate for election as a member of the executive committee unless the person is entitled to vote on the motion or at the election.
The above translate to a person needs to be financial to vote at an AGM or nominate a candidate for the EC. So if you are looking to be nominated make sure the person nominating you is paid up (financial).
Hi lacie,
You can ask but you may not receive.
Most of the information you want can be accessed by you, as an owner, by making a request under s108 of the SSMA (Strata Schemes Management Act) if the Owners Corporation (OC) will not freely give the information.
The fee is $30 for the first hour and $15 for every half hour there after, and you should put in your written request specifics about what you want to inspect. Note the OC is under no obligation to give you copies of anything but cannot stop you from making your own copy during an inspection.You should also keep in mind that information obtained for legal purposes may or may not be made available to you. There is client privileged for some material.
From a Teys Training note comes the following “The executive committee also needs to ensure that key documents relating to the litigation are kept separate and not circulated as part as general meeting papers. This is
to ensure that privilege is maintained from any inadvertent disclosure later on in the litigation.” Be aware of that as some legal material should be withheld to maintain privilege.Most people have never used s108 to seek information but do not let inexperience put you off. Read section 108 below and give it a go if you really want the information and the OC will not give it freely.
Receipts are records and documents the OC is obliged to keep for a specified period and so are accounts of the sinking fund and administration fund. You should ask to see the administration fund account and sinking fund account transactions for the period you wish to know about.Sometimes finding out what you want to know can be difficult but don’t let that put you off if your OC is dysfunctional and bleeding money.
If you have any questions then i am sure the forum will help
Section 108
108 Inspection of records of owners corporation
(1) Who may inspect records?
An owner, mortgagee or covenant chargee of a lot, or a person authorised by the owner, mortgagee or covenant chargee, may request the owners corporation to allow an inspection to be carried out under this section.(2) Form of request
The request must be in writing and be accompanied by the fee prescribed by the regulations.(3) Items to be made available for inspection
The owners corporation must make the following items available for inspection by the person who makes the request or the person’s agent:(a) the strata roll,
(b) any records or documents required to be kept under Division 2,
(c) the plans, specifications, certificates, diagrams and other documents required to be delivered to the owners corporation at its first annual general meeting by the original owner or lessor,
(d) if in its custody or under its control, the certificate of title comprising the common property or, in the case of a leasehold strata scheme, the certificate of title for the lease of the common property,
(e) the last financial statements prepared,
(f) every current policy of insurance taken out by the owners corporation and the receipt for the premium last paid for each such policy,
(g) any other record or document in the custody or under the control of the owners corporation,
(h) if the duties of the owners corporation under this subsection have been delegated to a strata managing agent, such other records (including records of the strata managing agent) relating to the strata scheme as may be prescribed by the regulations,
(i) if a caretaker agreement is in force or has been entered into but has not yet commenced, a copy of the caretaker agreement.
Maximum penalty: 2 penalty units.
(4) Inspection to take place at agreed place and time
The inspection is to take place at such time and place as may be agreed on and, failing agreement, at the parcel at a time and on a date fixed by the owners corporation under subsection (5).(5) Time and place of inspection if agreement not reached
If an applicant and the owners corporation fail to reach an agreement within 3 days after the owners corporation receives the application, the owners corporation must immediately send by post to the applicant a notice fixing a specified time (between 9 am and 8 pm) on a specified date (not later than 10 days after the owners corporation receives the application).(6) Copies of documents may be taken
A person entitled to inspect a document under this section may take extracts from, or make a copy of, the document but must not, without the consent of the owners corporation, remove the document from the custody of the owners corporation.Whale said:
Our Owners Corporation (O/C) is having having difficulties with the Tenants of one Lot who are regularly in Breach of By-Laws ………….
So here's one for our Legal Experts:
As the Strata & Community Titles Division of the Consumer, Trader, and Tenancy Tribunal (CTTT) has in the past been proven quite useless in solving such matters, ……………
Does the above mean your OC has tried to have the tenants fined for failure to comply with a notice to comply and been unsuccessful?
Snared said:
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Just another comment to show what a laugh our EC have become, the Drummers mother & boyfriend have three cars between them, she parks hers in the garage & the other two in the visitors car spaces near her Townhouse. At the last AGM she also joined the EC with her friends, so how they think the EC can enforce the no parking in visitors spaces to other owners & tenants now is beyond me.Strata is a wonderful thing – isn't it.
I understand your point.
To go back to whales original post – the concept is floated that by putting dysfunctional people in close proximity then any buffer, that is a consequence of separation, somewhat disappears.We do indeed have large buffers but large buffers do not overly negate the impact of the dysfunctional. It just modifies how the dysfunctional impact.
struggler said:
……………..
If I wanted to have trouble getting into my driveway/garage due to neighbours cars parked all over the place, if I wanted to walk out my front door and see garage/rubbish/rusted cars/overgrown weedy gardens, if I wanted to come home and find my neighbour had constructed a lean-to out the front and painted it purple, I would have bought a house……….
You could have bought a house and you could have also bought a property in my SP; you describe the vista so well.
I am glad your by-laws protect you because they do not work here. We have some extreme by-laws and an EC that picks and chooses when it wants to pursue a by-law. CTTT have dome nothing but endorse the poor management practises and so being dysfunctional is now the authorised norm.The entire system has failed in this SP but the SP goes on.