[The Hood]

SelenaT wrote:

In short, can we draft a by-law that prevents short term/Airbnb at specific times of the year.

Bert asks the same question over on YSP.
One answer is given so far and it goes:

Section 137A (2) A by-law has no force or effect to the extent to which it purports to prevent a lot being used for the purposes of a short-term rental accommodation arrangement if the lot is
the principal place of residence of the person who, pursuant to the arrangement, is
giving another person the right to occupy the lot.

That is a NO from the Act as long as the lot is the principal place of residence.
Note the condition, it must be the principal place of residence.

If the lot is not the principal place of residence then the door is open to make such a restriction provided the restriction is not harsh, unconscionable or oppressive (s 139).

[The Hood]

This thread exist mainly on the back of the way the legal profession portray s 76 of the Interpretation Act and s 160 Evidence Act which is essentially the same thing.
Just because the 7 days in those Acts does not exist for a SC notice does not make a SC meeting non compliant, there is another test the notice can pass but no  one goes into that.
Based on the half baked legal commentary people like my agent tell people like my SC that the half baked is the law and required. So we can have all owner with their notice with their proper 3 days yet half the SC crying out of order and non compliant. It’s a clown show and nobody is laughing.

Discussion on the deem served time-frames is all for nothing as case law buffs would know the SC doesn’t even need to send a notice let alone worry if it is on time for their decisions to still be valid.

The only thing that matter is what the NSW Court of Appeal say; unless the High Court say otherwise.

The NSWCA have said in the Yau case:
Beazley P (Leeming JA and Emmett AJA agreeing):

(5)   Non-compliance with the notice requirements for a meeting of the executive committee specified in the Strata Schemes Management Act 1996, Sch 3, cl 6 does not result in the invalidity of any resolutions passed at such a meeting. [116], [195], [226]

2 Elizabeth Bay Road Pty Limited v The Owners – Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409; Barron v Potter [1914] 1 Ch 895; Balog v Independent Commission Against Corruption (1991) 169 CLR 625; [1991] HCA 28; Ryan v Kings Cross RSL Club Pty Ltd [1972] 2 NSWLR 79, cited.

Guidelines for those on their best behaviour as Jimmy says.
A wish  list as I like to say.

Welcome to strata living for those who think the rules matter.
They mostly don’t matter because there is all too often no consequence for not following them.
If you think must means must in the Strata Act then you are very mistaken about 98% of the time.

[The Hood]

I call the Act a wish list because the Parliament wish owners to follow it; but generally speaking aren’t going to make them or do anything if they don’t.
Yours is such a good reply because it is the harsh reality of 20 years.
I have a good 20 years as well and I feel anyone with 20 years of strata under their belt would have a similar assessment.
The last sentence is gold.
Let’s hope they never work that out given how poor things are with them being oblivious.

[The Hood]

Jimmy-T wrote:

That said, there is a convention that you have to allow two or three working days (not including weekends) for notices to arrive by mail, if that’s how they were sent.

That is the issue.
It is 7 business days in the mail in order to claim evidence notices were served (Interpretation Act s 76 and Evidence Act s 160) and the claim by some on the SC (thanks to advice from the agent) is that because those 7 days were not allowed for (only 6) that, even though no one is saying “I didn’t get my notice”, the SC meeting is not compliant because of s 160 of the Evidence Act.
And the interesting part is even if there is an owner or two who do not get their notice it isn’t fatal to anything that will occur. It is just hopeless trying to run this SP in any way other than something that involves dysfunction being the main part of anything that goes on.

The issue is s 160 of the Evidence Act
Sch 2 cl 4 of the Strata Act (SSM Act) says owners need to have their notices 3 days before the meeting.
Nothing about when they get mailed, as long as they get their 3 days.
To me Sch 2 cl 4 is where the compliance occurs, or does not occur.
How does someone convey this to the recalcitrant?

I would love for you to send someone round.
Perhaps in that lies the solution to a lot of strata issue; there needs to be people who can be sent round.
Significant problems is an understatement.
FT have proven useless, CTTT and NCAT useless; yes they are the same thing just a different badge at a different point in time but it gives you an idea of how long the dysfunction has dominated the management.

From CTTT Member Phillipps in 2006
“At the outset let me state that judging by the material in this file and on file SCS 06/44900 this is a strata scheme that is not particularly well organised and in which communications appear to be dysfunctional….”

And nothing has changed despite repeated attempts to get intervention.

Catherine Cusack,  LEGISLATIVE COUNCIL Wednesday 18 June 2008;

“The CTTT seems to reward liars, rogues and defaulters, yet it punishes honest people …”

Nearly 20 years on and we still have the same problems.
This SP is not particularly well organised and whatever tag CTTT operate under they still reward the rogues.

Is s 160 of the Evidence Act a pre condition to a compliant SC meeting notice OR is satisfying Sch 2 cl 4 all that really matters?

[The Hood]

Jimmy-T wrote:

call another meeting to ratify the decisions made at the meeting

This is a pet matter for me because by the principles of ratification it is the principal who ratifies yet in strata we seem to have forgotten that and the assistant (the SC) seem to be ratifying and ratifying mostly thing it did and at time ratifying informality.
I have read a lot on this and pressed some legally qualified people (24/7 strata) on this and no one has resolved how the assistant (the SC) meets with the well established principles of ratification set out in too many superior Court ruling to list.

Starting with the established principles of ratification how can the SC ratify anything?

[The Hood]

Section 141
(2) The change to the by-laws has no effect until—

(a) the owners corporation lodges a notice, in the approved form, with the Registrar- General, and

(b) the Registrar-General makes an appropriate recording of the notice in the folio of the Register for the common property for the scheme.

As the OC is an artificial entity  (not a natural (real) person) it comes back to its assistant the SC to do this and if you want to go all the way arguably it comes back to the secretary,  the elected or delegated secretary (agent),  under s 43 (g)  “to attend to matters of an administrative or secretarial nature in connection with the exercise of functions by the owners corporation or the strata committee of the owners corporation”

And you can’t charge the owner for the OC to perform a function of the OC. Well; you can and if the owner is silly enough to pay it then their bad.

[The Hood]

Jimmy-T wrote:

However, it strikes me that if a scheme is looking to avoid getting two quotes by going right up to and not beyond the prescribed limit, then you have bigger problems than GST.

Yes the scheme has serious problems but the person proposing the $30000 line item, an entrenched SC member, oversees this $30k per year project that does not really relate to the management of the OC.
Where i was going with this is that if the line item says $30k without GST then by considering the key words the “proposed expenditure” will be $33k with GST and therefore the motion to create this line item in the budget fails the requirement to have a second quote.
It should be ruled out of order by the Chair.
It is all so the proposer, who typically picks up about  20% of that line items budget as “pay”, is the only show in town.

[The Hood]

A motion from our 29 June 2024 AGM.

Committee Restriction:
That pursuant to Sch 1 cl 9(i) of the SSM Act 2015 the strata committee cannot pursue breaches of the Keeping of Animals by-law based on a dog being a dog or a cat being a cat.
Explanation: Section 137B operates independent of any by-law as the Member explained in the last dog and cat by-law matter NCAT dealt with

The motion failed  (was lost).
The SC will continue to send a notice to comply for a dog being a dog and a cat being a cat.
The OC isn’t in this compromised position if zealots didn’t have the numbers and  if NCAT worked and the Member had invalidated the by-law when the Tribunal had the opportunity to do so.

It never ends.

[The Hood]

There are two secretaries in the SSM Act.
Capital S secretary and lower case s secretary.

Capital S secretary is the Commish of Fair Trading or Secretary of the Dept.
Lower case s is the secretary of the OC.

The Secretary of 218 is the capital S variety and referring to the dictionary in the SSM Act

Secretary means—

(a) the Commissioner for Fair Trading, Department of Customer Service, or

(b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department Secretary means—

(a) the Commissioner for Fair Trading, Department of Customer Service, or

(b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department.

Section 218 is about making application to Fair Trading
The s 216 process is not mandatory and is about an in-house thing if the OC likes.

[The Hood]

Sir Humphrey wrote:

Otherwise, I think the ruling just says an owners corporation is welcome to have a bylaw saying whatever it likes but it would be of no effect to the extent that it contradicts existing legislation.

Nailed it, that is what it distills down to.
It was taken by the anti dog element to mean the by-law is valid, they missed the part about s 137B.

[The Hood]

Great post. My OC has a no dogs or cats by-law. Simply put they believe they can make an owner remove an animal because it is a cat or dog.
The interesting part for you is that I took our by-law to NCAT and ask the Member to run the tests in Cooper (the famous Cooper case that led to the new pets by-laws).

Our by-law is dead in the water if the Member runs the test but the Member did not run the tests, instead the Member went all in on equity. A little something for everyone.

This is the crux of the decision.
9. The above section 137B invalidates any existing “blanket ban” in relation to keeping of animals as may presently exist within any strata scheme. It also places an onus upon neighbours or strata management to be able to satisfactorily demonstrate that actual unreasonable interference with other lot owners or users of common property has been caused by the keeping of a particular animal upon a lot.

10. Section 137B operates irrespective of any by-law. This does not however mean that the body corporate lacks power to make any particular relevant by-law and that the Tribunal should therefore make an order such as is presently sought. The section simply renders inoperative the application of any such by-law in relation to a particular animal in the absence of satisfactory evidence of unreasonable interference by that animal with neighbourhood amenity.

K Rickards Tribunal Member
SC 21/48504 (unreported)

It seems a OC can have any old rubbish as a pet by-law but s 137B operates independent of the rubbish.

Had the Tribunal run the Cooper tests the by-law would have been invalidated, instead the by-law remains on the books but it is made clear in the decision the by-law does not effect the operation of s 137B.

Your by-law is not worth the paper it is written on as s 137B should prevail if the by-law is tested, but  NCAT is not fit for purpose so that spices things up.

[The Hood]

I will just mention 2 cents rounds to nothing these days.

“The legislation has always envisaged that generally, strata schemes would be managed by ordinary lot owners for their own benefit. …”
J Bordon: Nulama Village P/L v Owners Strata Plan 61788 (Strata & Community Schemes) [2006] NSWCTTT 550 (25 September 2006)

The idea of running off to the lawyer is just not in keeping with that objective.

Reverse mortgage could be an option but you need to find some way to communicate with her.

And:
Blame the vexatious owner for the OC not keeping up with its s 106 (fire) obligation.
If your building burnt down then that would have been fun with the insurer.
I think you should thank whoever brought the matter to your attention.

[The Hood]

TrulEConcerned wrote:

If he can ignore requests or instructions from the SC regularly and escape penalties, then what is the point of the SSM Act? What is the point of Fair Trading if it isn’t there to protect consumers?

One of the highlights of FT is that in this type of situation their go to line is “if the OC doesn’t like it then they can appoint a different agent”
Sad but true.
You think a poll is fun. At my upcoming AGM, in a large SP, one group believe they have the number to request a secret ballot for every vote.
Next level stuff. Should be entertaining.

[The Hood]

This is a really good issue.
From all that I have read on this matter confidentiality (privilege) comes into play if you are the party the OC has sought legal advice against.
If it is you v  the OC (or vice versa) then privilege prevents you from accessing the record i.e. the advice the OC got for the matter.
If you are not that person then you should be able to see that advice.

A strange situation because if you are denied by privilege then how hard is it to get a strata mate to access it.

As I like to say; who cares what we think, it is what the Courts think.
So here is a case where me old mates down at the NSWCA (Highest Court in NSW) say privilege exists.

“  … the disputed documents are concerned with actual or prospective claims against ******** over which the Owners Corporation is entitled to assert legal professional privilege as against ********.”

The Owners – Strata Plan No. 74602 v Eastmark Holdings Pty Limited [2013] NSWCA 221

[The Hood]

CTTT, now NCAT, say if you have a copy of the strata roll then there is no issue with using it for contacting other owners.
Hard to imagine it would be a problem to contact other owners regardless of if one had a copy of the strata roll..

“Secondly, even if an address for service of notice is “information … about an individual”, part of the primary purpose of the collection of lot owners’ addresses and their inclusion on the strata roll is so they can be contacted by other lot owners and the Executive Committee of the Owners Corporation. … ”

Legge v Network Strata Services Pty Ltd (Strata and Community Schemes) [2013] NSWCTTT 45 (8 January 2013)

[Author]

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