[Sunny]

Thank you for your feedback

Apologies that my writing is unclear

The said by-law

“With regard to lot 10 the Owners Corporation states the Owners Corporation gave the previous owner consent to erect a studio room within lot 10 and adjoining and supported by the (Studio) common property.
A building certificate was issued by Hunters Hill Council dated 20 November 1997 in respect of approval of the said Studio.
The Owners Corporation by this By-law confirms its consent to the erection of the Studio and its continued existence.
The Owners Corporation assumes responsibility for the cost of insurance, maintenance and upkeep of the Studio as if it were “Common Property”.
The owner of lot 10 must reimburse costs incurred by the Owners Corporation in relation to the insurance, maintenance and upkeep of the Studio and also any costs in relation to registering amendments to the registered plan (tt any).
Wording obtained from Chamber Magistrate -Hornsby Local Court 31/10/89.”

Nothing of import can be added as to its history other than it is the first of the special by-laws  in the consolidation of  2021, and subsequent ones were approved as late as 2019, thus indicating it was passed prior to then. The SM is relatively new, they were unable to provide any further information or historical records and just deferred to the Committee.

This issue was triggered by water damage in studio following December storms and a query to strata whether a claim be made. No claim has actually been put forward. Actual damage is relatively minor ie carpet damage and some furniture but the issue has opened a can of worms.

Whether a redistribution of entitlements was previously discussed by strata is unknown. It is just an assumption that because it is being pursued now that no previous actions have been taken/agreed.

The strata claim, inter alia

“As per the by-law, all costs related to the insurance claim including but not limited to:

* excess

* increase in premiums in January 2025 and going forward that can be attributed to this claim

* a portion of the building insurance premium calculated in relation to square meterage of the studio or any other means agreeable to the parties from 2024 and going forward, will be reimbursed by the owner of lot 10 to the Owners corporation”

As I said in my last post, a insurance claim is not being pursued. However the concern is the position adopted by the strata and the possibility they will seek to formalise their position.  I would like to be able to rebut the unsoundness of their claims for excess and increase in premiums, as being outside the intent of the by-law, and the  (illegal?)burden of a separate calculation for insurance premiums for the studio, in addition to that already paid through levies.

[Sunny]

Thank you for your reply.

It has been used as a occasional flat when a relative staying over but generally just used as a separate living space, akin to a living room. It has its own bathroom space.

The historical claim seems premised in that none of any costs(in the form currently being proposed) have been recovered since the by-law was passed, regardless of current ownership. I did read somewhere that the current owner has to accept liabilities of previous ownership and thrash it out themselves. That the strata has seemingly failed, or even previously made a considered decision not to pursue costs outside of entitlements seems to have escaped them ie demonstrate to me that what is occurring to date(all costs through entitlements) has not previously been agreed, rather than the boot being on the other foot!

It is felt that it is personal, an aggrievance and somewhat anal given what I expect the cost to be involved. However there was/seems to be no real animosity at a personal level(the owner on her 90’s).

A more recent by-law was passed granting exclusive rights to three owners included that they had to pay a one-time compensatory charge of $123.45 each(or similar amount) and there was no on-going liability to beneficial owners, for the ongoing exclusive right to a total of 1.11sqm) . Maybe that gives you an impression of their thinking, while also being also to/leader of declining a motion for a reassessment of entitlements requested by another owner on a separate matter. And to top it off, the argument/request/demand has been communicated via the SM in legalese, with no independent legal input.

Both by-laws in principle have merit in being assessed through entitlements, but the chosen path seems to be direct charging(maybe because a reassessment of entitlements will result in no change? eg the lot owner being nearest to a freeway passing the property, and maybe a consequential consideration taken into account in any reassessment and potentially a reassessment coming back to bite them in the bum, albeit the correct basis for determining levies).

I would like the excess and cost of insurance increases due to a claim on the studio be put to bed as unsound and that an additional premium charge also be legally unsound as it puts an additional burden on the lot owner, something that does not apply to other lot owners.

I am sure that the original intent of the by-law was that the studio owner incur the same costs as any other owner in the scheme, and nothing punitive was intended(I mean it was “just” a local magistrate who agreed to the words in 1989!).

The approach being considered is to lie low at the moment but expect this wont, and will make itself on to the record. In the meantime we will just point out that the drain from the lot to the street is blocked, either on Council property and by Council tree or on strata  property and more meritous in pursuing!

[Sunny]

All nominations in order. I believe the agents were nominated by the lot owners for which they each held company nominees. No cross nominations even they the same company was involved. The only other nomination, other than by those present, was by a partner representing the owner.

So I dont see any wriggle room there

I highlight two pieces of the regulations here

31. Persons who are eligible to be appointed or elected to strata committee

(1) The following persons are eligible for appointment or election to the strata committee of an owners corporation:

(a) an individual who is a sole owner of a lot in the strata scheme,
(b) a company nominee of a corporation that is a sole owner of a lot in the strata scheme,

32 Persons who are not eligible to be appointed or elected to strata committee

(1) The following persons are not eligible for appointment or election to a strata committee or to act as members of a strata committee unless they are also the owners of lots in the strata scheme:

(a) the building manager for the strata scheme,
(b) a person who acts as an agent for the leasing of a lot or lots in the strata scheme to tenants,

The distinction I am trying to make is that 31(1)(b) makes specific reference to company nominees, yet 32(1) makes notably no reference to company nominees. It solely says owners of lots, not their nominee representative or proxy.

Now I suspect that is a generalisation, as if you had to define owner every time, it would be so cumbersome and unwieldy. However, more experienced minds than mine may argue it is a definite differentiation or could be tested as such. ie you want to sit on the EC but you wish to delegate all decisions to a party that has no financial interest in the scheme(except their own!).

A long bow I know.

If it goes to NCAT it will have to be done by the aggrieved parties as the only person on the EC who has the confidence is vulnerable to the EC turning completely feral, as was attempted earlier this year. Having a member on the inside, albeit out gunned, is far better than having no visibility to the goings on in the first instance.

The role of Treasurer in that regard is very important as they have the ability to question every payment and where approvals do not seem to align with regulations and accepted practice, attention can be drawn to it in another forum, albeit on a private basis.

…..if only we could get some developer interest!! Money is the only thing that  matters to these people. If you get in the way, watch out!

Sunny

[Sunny]

Well the inevitable has happened. The AGM was held(deferred a week as the Secretary’s auction was deferred a week!).

Attendees and proxies corralled to ensure most existing EC members frozen out(personal vendetta). Replaced by two real estate agents and a real estate friendly owner, in addition to the coup master(ex real estate owner) and another long-term owner.

Technically the real estate agents would go when the new laws come in. But no, this time they have split a company nominee into two. Company nominee has been given to one agent for x number of properties and another for y number of properties. Thus subverting the intent of the new laws(recognising that at least one agent was going to get on as the existing company nominee).

It is also possible that the coup master will also hang on to a cupboard size lot after selling his apartment to maintain his position and control. For what reason is unclear, though it is clear all these people who turned up or submitted proxies did not do so on their own volition. Go back a few years and you will find the AGM was often adjourned because of a lack of a quorum!

To top it off he got himself appointed as Secretary again, as he has again stacked and hijacked the committee. 

So another year goes and the challenge will be to keep the Committee in check and ensure they apply sound and consistent values to all owners, not just their vested interests.

Sunny

[Sunny]

The rules in NSW

“The Annual General Meeting (sometimes referred to as the AGM) must be held each year on a date not earlier than one month before, nor later than one month after the anniversary date of the First Annual General Meeting.”

Good luck if anyone has the record date of the first AGM. But ours have generally been held September through December. Last year November.

So the timing in itself is not questionable, it is just why days before you are selling and days when more appropriate rules come into play that you call a meeting? Nefarious actions seem to be in play. What we seek is a means to legally defer the meeting until the new rules come in  two weeks later. A qurom will be present and even if not that would only defer meeting by one week. 

[Sunny]

I feel gloomy.

This proxy change will be a unintended step backwards in the battle against the unscrupulous and morally corrupt who have no care for the welfare or safety of the occupants of their lots, or anyone else in the building.

At least agents cannot be on the EC; they would only “perjure” themselves anyway!

It is not the company that wants to exercise the power, as they have little or nothing to gain. It is the agent who wants to exercise the companies power for his and his mates benefit. eg got a problem? Go to the agent and use the 20 % direct authority he has to get your way. 

The owner does not necessarily see the benefit of massive overcrowding, that money goes to whoever is running the operation. Any operational cost impacts are socialised between all owners. Direct costs are sort to be borne by the OC, hence seeking to take over the EC.

[Sunny]

Thanks Jimmy. That is welcome news.

Can you quickly clarify whether a company nominee vote is regarded as a proxy vote, which will have limitations) or is simply just an extension of an owners vote, which has no limitations eg the above situation is occurring because the agent is the company nominee for about 20% of the properties in the scheme, giving themselves a huge head start over others, particularly owner occupiers and independents, with the apathetic a long last.

If this is the case the changes to proxy farming actually makes it more difficult to keep the wolves out of the hen house. Previously the owner elected to give proxies to the various agents who managed their properties, but this changed to company nominee when this agent made his first, and successful, attempt to change the status quo and remove the strata manager, who did nothing more than not approve everything asked for, and got too close to the sun(overcrowding and illegal constructions in these properties).

Their latest attempt(for exactly the same reasons) was able to be defended by obtaining more than 25% opposing the motion, but this position will be under threat again(“we’ll be back to get you next time”) and possibly easier given the proxy farming restrictions(which I have supported in the past).

They sought to replace the EC with two real estate agents who manage properties in the building, a former real estate agent and owner and two investor owners he manages apartments for, all with apartments which have been identified as overcrowded and/or illegal constructions.

[Sunny]

Hello

On a related matter, what is the definition of owner in this context? I am thinking of the situation where an agent becomes the company nominee thus being able to “side-step” the intent of the law(as I read it). As company nominee and agent for the same said properties there appears to be a substantial conflict of interest(and currently power) to ensure decisions are taken in self-interest.

Currently that power is being abused when decisions or actions by the EC are not favourable, and the EC is moved against at EGM’s seeking more favourable EC members installed. These include a fellow agent who manages some of the company said properties, as well as fellow travellers who just happen to be managed by the former agent and would also benefit from more favourable decisions.

Sunny

[Sunny]

Thank you for your interest and comments. Whilst it is illegal to over occupy outside the agreed tenancy, is it illegal to advertise where upon you can take action over the fact they are advertising i.e whether they are successful or not is unknown as you cannot enter premises without the usual waiting periods and the evidence is gone. For example, does the mere fact that a tenant advertises(or someone does on their behalf) for say four in a room provide you with enough “evidence” to issue a breach of a by-law and/or a breach of the tenancy agreement without the need to go in and witness? Does it constitute enough evidence to terminate or do you require warnings to be issued first?

For example, tenants are registered at a couple of apartments, with common email addresses or common contact numbers. The tenancies may be in the same or different names. Advertising is evidenced seeking people in excess of that permitted citing the contact numbers. Can a breach be issued? The actual apartment may be unknown. It may be one or both or more, depending on how big the operation is(likely to be be all as an operation is in place). If notices can be issued on the grounds of advertising for premises where the tenant is registered or listed as a contact that would help break up the operation.

Of course the “tenant” can produce letters of approval from owners for sub-letting which is just a way of legalising the operation. But it does not legalise excess occupancy.

My point being I am seeking a view on the ability to act on advertising, as the basics restrictions are in place with a tenancy agreement and by-laws. If you cannot act on advertising as it stands now, would a by-law restricting a tenant advertising excess occupancy anywhere in the building hold up i.e it is not a restraint on their rights what. To labour the point a by-law that restricts advertising over occupancy even if you are not the advertiser. All can claim “not me”, but the beneficiary has a tenant or owner interest in the building.

Your thoughts please

[Sunny]

@scotlandx said:
Clause 9 of Schedule 2 of the Act provides that a person is not entitled to move a motion or nominate a person for election to the EC unless they are entitled to vote on the motion or at the election.

Clause 10 para 8 provides that an owner can’t vote if contributions haven’t been paid.

Clause 10 deals with entitlement to vote.  So the cumulative effect of the two is that if you are non-financial you can’t nominate someone to the EC.

 

Thank you for the references. Much appreciated

[Sunny]

@scotlandx said:
A non-financial owner can’t nominate themselves or anyone else to the EC.  Making a nomination and being on the EC are two different things.  Nomination is like voting, you have to be financial to do it.  The issue is whether the owner making the nomination is financial.

once someone is on the EC they may become non-financial but that doesn’t prevent them from voting in their capacity as an EC member.

Thank you. Can you point out where this is legislated or proscribed? I am happy with the answer if I can be pointed to such.

[Author]

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