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I think this agent has misinterpreted Section 79 (6) of the Act: (6) An owners corporation of a large strata scheme must include in the estimates prepared at an annual general meeting— (a) specific amounts in relation to each item or matter …
Well spotted. This means only large schemes have to include spending plans but smaller schemes still need to have a maintenance plan in place – they just don’t need to put figures in place.
For instance, this could say that they will need to replace garage doors in an estimated so many years, without necessarily committing to a cost required to do so.
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Qld BUP strata scheme.
What is a BUP scheme?
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Is the Strata Managers advice correct? Should I be reading some other document?
No, the strata manager is wrong. The most puzzling thing about this is why they would give you such erroneous information. You need to have a 10-year capital works plan which must be updated every five years. here’s the law: Strata Schemes Management Act 2015 No 50 – NSW Legislation
If the Strata Managers advice is incorrect this means our Owners Corporation (of which I am now a member) is in breach of the Act by not having a current 10 year Capital Works Plan.
Yes, you are in breach but there are no stratakops so no one is going to jail. By the way, you are automatically a member of the owners corp when you buy a strata unit. Maybe you mean that you are now on the strata committee.
What are the ramifications of this for the OC and its committee?
1. If an owner decides that your building is being badly run and applies for the appointment of a compulsory strata manager, this could be used as evidence of dysfunction and mismanagement (but it wouldn’t fly on its own – there would have to be other defaults).
2. You don’t have a capital works plan. How do you know how much money to set aside for future repairs and maintenance?
3. You have a strata manager who doesn’t know what they are doing. This is probably the most serious concern. What other bad advice are they giving? What else are they doing wrong? You need to get shot of them pronto.
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Speaking as a former committee member, I would have thought that the key to any complaint is evidence and not the name of someone alleging illegal parking.
It’s a form of bullying. My block recently passed a “name and shame” rule at an AGM at the chair’s insistence, saying that all correspondents to and from the committee MUST be named in the minutes. Next meeting, they (quite rightly) didn’t name someone who was already doing it a bit tough.
My argument was that if it can be used selectively, it shouldn’t be used at all. Needless to say, I was named in the minutes.
There should be a strata law that you provide the Lot Number, at most, if you NEED to identify residents, otherwise it’s just a weapon for control-freak chairs and secretaries (often the same person) to deter complaints and questions. Hey, it works in Russia, China and the Philippines, why wouldn’t it work in your unit block?
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Apply for mediation at Fair Trading with a view to pursuing the owner under Section 158, “Order for removal of an animal permitted under by-laws” which says:
(1) The Tribunal may, on application by an interested person, make an order against a person who is keeping an animal on a lot or common property in accordance with the by-laws for a strata scheme, if the Tribunal considers that the animal causes a nuisance or hazard to the owner or occupier of another lot or unreasonably interferes with the use or enjoyment of another lot or of the common property.
(2) The Tribunal may order that the person–
(a) cause the animal to be removed from the parcel within a specified time, and be kept away from the parcel, or
(b) within a time specified in the order, take such action as, in the opinion of the Tribunal, will terminate the nuisance or hazard or unreasonable interference.
Gather your evidence, including statutory declarations from witnesses. However, the simple fact that you have applied for mediation – a mandatory precursor to Tribunal action – might get something happening.
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I’ll close the topic off.
That would be my decision to make and there are other voices on this topic. Just uncheck the “notify me …” box if you don’t want any more alerts. And congrats on resolving the issue.
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Is there a remedy? NCAT?
Only if the law is being breached or if the scheme is clearly dysfunctional, or decisions are being made that clearly benefit some owners to the financial detriment of others, or if the committee is engaged in fraud or financial impropriety or the scheme is not fulfilling its legal obligation to maintain and repair common property.
NCAT will look at valid proxies as an indication that those people are generally happy with the way things are being run. The easiest way to change things may be to harvest some of those votes for your side.
Obviously, when you say 5 committee members control 11 proxies, you are including their own votes plus another from supporters. In a scheme of 21 lots, each owner can only carry one proxy.
That would be a very fragile majority if the other 10 owners were united in opposition and persuading one owner to change sides would change everything. But that’s easier said than done and the scenario you describe is very common.
In the days prior to limits on proxies, in one scheme I know of, before each AGM the chair used to diligently go round people who weren’t interested in attending and offer to vote on their behalf, however they wanted on the issues they cared about, which might only be one or two motions.
Armed with that proxy, he might even have voted against his own motions but he had their votes for all the other motions on the agenda.
He had done nothing legally wrong and NCAT would not have raised an eyebrow – even when he turned up at an AGM with more votes and unit entitlements than everyone else put together and used them to replace the only dissenting voice on his committee.
Later, with the 2016 law changes imminent, his submission to Fair Trading on why there shouldn’t be limits on proxy farming was a master class in equivocation.
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Can a strata scheme transfer “excess” funds between the AD & CW accounts without any form of penalty i.e. raising special levy by the receiving account to pay back the source? On whose authority would this transfer be undertaken …
I believe the transfer of money from the Capital Works (CW) fund to the Administration (admin) fund can be approved by the strata committee, provided they have not been constrained from doing so by a vote of the owners corp at a general meeting.
The strata manager doesn’t have that authority unless it is specifically granted by the owners corp. Strata law says the owners corp must “not later than 3 months after the transfer or use, determine the amount to be levied as a contribution to the fund from which the transfer or use was made to reimburse the amounts paid from the fund.”
Some strata managers interpret this to mean that you have to pay the money back by then, via a special levy if need be. Others read the Act differently, saying all that’s required is that the owners corporation, advised by the strata committee, decides how much will be repaid and the period over which that must occur.
For instance, in the latter scenario, you might decide to pay the amount back over two years and reduce the normal levies into the admin fund by the same amount, meaning you have effectively transferred the money permanently. Either way, if large sums are involved, you might want to get advice form an experienced strata lawyer.
It’s one of the quirks of NSW strata law that schemes must have established a 10-year a capital works or maintenance plan, but are not required to fund that by accumulated levies, as some may prefer to use special levies or strata loans.
By the way, as explained in the notes on the Forum home page, it’s not helpful to new strata owners or readers of this website to use initials and acronyms, certainly not in the initial reference.
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I believe building defects period is 7 years.
It’s six but recent legislation may make builders liable for 10 years for the work they’ve done.
But it would be hard to attribute a burst pipe as a building defect. Pipes burst all the time for any and no reason.
True, unless you can show it was incorrectly installed – then it’s a defect.
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I think the easiest solution is to check the bylaws in relation to the sharing of security devices. If the commercial lot owners are sharing / duplicating swipes/ fobs, take action against them in NCAT. It is often much less effort to just make things expensive and difficult for those who try to circumvent being a good compliant resident.
I’ve never seen any such by-law but if the committee won’t even take action against obvious illegal parking they’re unlikely to go to the expense of drafting a by-law on electronic pass usage.
But you are fundamentally right – make it less easy and more expensive for the commercial owner to continue taking advantage of the rest of the building.
And the “simplest” way to do that is to ping them through Notices to Comply for inviting people into the block where they park illegally, then pursue fines for non-compliance, then let NCAT decide who is or isn’t a bona fide visitor.
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Re: Fobs being used by two non owners and non residents
Can’t everyone’s fob be reprogrammed? Everyone but the two so-and-sos with a useless fob, that is. doing that will leave them in the cold.
That would require the approval of the committee, which is not forthcoming in this instance.
Re: Habitual illegal car parkers
I am unsure of all your options, but two things come to my mind:
1. Fine the wrong doers
Ask your friendly local council to issue fines to the trespasser (see https://www.nsw.gov.au/housing-and-construction/strata/living/parking). It would help if you have already taken photos of the illegally parked cars;You have to have an agreement in place with your local council that they will patrol the car park – something that only happens in one or two blocks in the whole of NSW. That’s for the simple reason that it’s more hassle than it’s worth for both the LGA and the strata scheme. For instance, they will also ping residents who have accidentally parked over the lines in their spaces. In these days of monster utes in tiny parking spots, chaos would ensue
or
2. Install hurdles for the wrong doers
That would involve, in each visitor car space, installing a parking bollard, IMHO the “fold down” type makes sense. These require a key in order to fold down. Installed in each car space, it will prevent anyone parking there who has not folded down the bollard. That is, any illegal parkers. Owners/residents should be given a key to the bollards.
6 visitor spaces means 6 bollards. Ideally they are keyed the same, every owner/resident will be able to access all visitor spaces in order to allow a visitor to park.
The only downside is that a lot owner would have to leave his/her apartment in order to allow a visitor to park. Not really a hassle when you consider the upside: a car space which if not available to a particular visitor, at least is being used by another legitimate visitor(s).
Again, the committee in this case has decided to do nothing, so installing bollards isn’t going to fly. Also the owner with the commercial property would also have to be given a key.
What’s really needed is for the committee and the strata manager to stop taking the line of least resistance and issue a Notice To Comply to the lot owner every time one of his employees parks in visitor parking, then follow it up with an application for penalties at NCAT.
Not easy, it would be time consuming and potentially expensive but that is the only way to deal with this under current strata law (and, again, it would require a committee that was prepared to take action).
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They might also be getting conflicting instructions from different people on the OC, while the SM is (supposed to) act on behalf of the OC via resolved instructions.
We’ve had a couple of instances here where ordinary owners have acted as if they were the committee chairs when they weren’t – one wasn’t even an owner, he was bullying people on behalf of his daughter. I wish it were not so, but I totally understand why service providers might only want to deal with the strata manager.
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