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All of the above is true, but just to clarify, you can’t exclude someone from the committee if they refuse to sign.
And you can’t sack them from the committee if the only reason is that they have signed then breached the code of conduct.
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I’d also like to clarify if the secretary is sending a proxy to the meetings and how can this work?
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Unless a by-law specifically excludes bicycles, I recall reading previously they can be classified as “vehicles” when it came to them being “parked” on common property.
My block’s by-laws say that only “roadworthy motorised vehicles” are permitted. Wait till I sell my car and buy a couple of electric bikes which would be both motorised and roadworthy in some interpretations of the law and neither in others.
By-laws also usually permit an owner to install fixtures for security/safety without OC consent. Would this cage need securing to a floor or wall?
Which by-laws say that? The model by-laws say this:
2 Changes to common property
(1) An owner or person authorised by an owner may install, without the consent of the owners corporation:
(a) any locking or other safety device for protection of the owner’s lot against intruders or to improve safety within the owner’s lot, or
(b) any screen or other device to prevent entry of animals or insects on the lot, or
(c) any structure or device to prevent harm to children.I don’t think that is intended to cover storage cages, regardless of what they’re storing. However, by-laws can be and often are different. Another relevant one might be that you can’t put anything in your lot or common property that doesn’t fit with the look of the building.
The answer to this one is to apply for permission and send details of what you plan, then deal with the response. If it’s negative and unreasonable, then you can challenge it.
The thing not to do here is just put the cage in place and hope no one notices or objects. In the past, cages have been ripped down and left in a heap on the floor when the owners failed to get permission and NCAT backed the owners corp.
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I still don’t think that someone who is a nominee for a building can claim to carry the votes of everyone in that building. Even if they are the “proxy” there is a limit to the number of proxies any one person can hold.
Sounds like you have a mess there and the strata manager is not helping. If the strata manager wasn’t allowed to see the minutes, they should never have allowed the veto.
A trip to NCAT may be in order, to get it sorted out. One owner can’t be given a veto on all motions proposed at a community association. Maybe you need a new strata manager too.
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Warning: My opinions immediately below turned out to be wrong (as you will discover from reading on). I have left them in because I think it’s a good example of how one can misinterpret strata law, especially if you go by what you think the law’s intent was, rather than a “black letter” reading. It’s worth reading through all the posts to see how a reasonable interpretation can be totally wrong. – JimmyT
Unless the person raising the objection owns 33.4 percent of the unit entitlements, or has signed letters from enough owners, I think the strata manager has erred here. This is what that section of the Act says:
Decisions to have no effect if opposed by more than specified owners
A decision of an association committee has no force or effect if, before the decision is made, notice is given to the secretary of the association by 1 or more owners of relevant lots, the sum of whose unit entitlements exceeds one-third of the total unit entitlements, that the making of the decision is opposed by those owners.The key word in all this is “owners”. The way I read this is, just because someone is the secretary of a block with more than one-third of the owners in it, they don’t necessarily have the votes of owners required to block a vote in committee unless they can show that all those owners have made an individual decision to support them.
Your strata manager needs to have a serious rethink on this (and not allow themselves to be so easily bullied). If they refuse, hit them with a request for mediation leading to a run at a section 193.
193 Orders to settle disputes or rectify complaints
(1) Orders relating to complaints and disputes
The Tribunal may, on application by an interested person, make an order to settle a complaint or dispute about any of the following—
(a) the operation, administration or management of a scheme under this ActIf you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
In that case, take the breach notice to Fair Trading then NCAT yourself. And at your next AGM propose a motion that in the event of any future deadlock, the strata manager is empowered to act in the best interest of the block. I’m surprised the strata manager doesn’t have these delegated powers (under section 146 (4), below) as they are fairly standard
But maybe you could just ask the person who is sitting on the fence to approve the Notice To Comply- which is, after all, just a warning – and save everyone including themselves a lot of hassle and possibly even money.
146 Notice by owners corporation to owner or occupier
(1) An owners corporation for a strata scheme may give a notice, in a form approved by
the Secretary, to the owner or occupier of a lot in the scheme requiring the owner or
occupier to comply with a specified by-law if the owners corporation is satisfied that
the owner or occupier has contravened that by-law.
(2) The notice must contain a copy of the specified by-law.
(3) A notice must not be given unless a resolution approving the issue of the notice, or
the issue of notices for the type of contravention concerned, has first been passed by
the owners corporation at a general meeting or by the strata committee of the owners
corporation.
(4) Subsection (3) does not apply to the giving of a notice by a strata managing agent if
that function has been delegated to the strata managing agent in accordance with this
ActIf you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
Firstly I understand NCAT awards costs in exceptional circumstances.
I think you misunderstand. This is not about “costs” awarded by NCAT, it’s about expenses incurred by the owners corp in pursuit of a case that they have lost. The principle behind Section 104 of the Act is to ensure that owners don’t have to contribute towards the expenses incurred in a losing case taken against them, or a winning case taken by them which the owners corp defends in vain.
You’re right that in NSW NCAT only awards costs in exceptional circumstances. However the law has already established that owners who win cases against their owners corps don’t have to pay any of the expense accrued by the owners corp in running the case.
Since they would be doing that if the expenses were simply paid out of the Admin Fund, Section 104 says thay have to be paid by a special levy which excludes the winning owner.
Let’s say your strata manager has charged you $5k for running a case against a legitimate claim by an owner, and that strata manager has hired a lawyer who’s charged $10k for their services.
If the owners corp loses, the law says they have to cover the $15k expenses by a special levy that, by implication, excludes the winning owner.
Some strata lawyers I have spoken to weren’t even aware of this until recently. Now that it’s out there, it may make strata committees think twice before taking frivolous NCAT action against owners with whom they disagree, if they have to explain to the other owners why they suddenly have raised a special levy to pay for a failed case.
In this specific case, the strata manager and committee have effectively conceded that they can’t charge the owner for the expenses but are now trying to nickel and dime it by only excusing him from paying some, not all of the expenses.
This is what section 104 of the Act says:
104 Restrictions on payment of expenses incurred in Tribunal proceedings(1) An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.
(2) An owners corporation that is unsuccessful in proceedings brought by or against it for an order by the Tribunal cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund, but may make a levy for the purpose.
(3) In this section, a reference to proceedings includes a reference to proceedings on appeal from the Tribunal.
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Storage access to the meter room doesn’t sound like a good idea.
I suppose you could leverage that if you apply for permission and they say no. But the worst response you might get is if they reject it and say it’s visually not in keeping with the rest of the parking spaces. If that happens, and they ignore the veiled threats about the storage in the meter room, then it’s off to Fair Trading, then NCAT (where you would probably win).
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sure a plant might fall but unlikely to do so, unless say the weather is harsh, and the chance of hitting someone is realistically very remote.
A plant has already fallen from there but that aside, I think insurers work on possibilities rather than than only likelihood. So yes it’s possible that a plant pot might fall and even if it’s highly unlikely that someone will be walking underneath at that precise moment, it’s possible.
As for extreme weather, this very day scientists have declared that extreme weather events are the biggest threat to Australia when it comes to disasters. If a gust of wind can pick a gas cylinder up and drop it on to a hapless pedestrian, killing him, (as happened in Sydney withing the last year) another blast could easily knock over one or more pot plants.
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Yes, can you lock the room and charge any one who needs to access it?
See previous responses. Look like he’s stuck with it unless he’s prepared to take on the owners corp and pay to shift it himself.
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Wow! I had no idea and have never heard of such a thing before. Is it the same in NSW? I suppose it then becomes a cost-benefit equation. Is it worth the cost and hassle of having the power board moved?
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I think you have hit the mark by pointing out that there;’s nothing for them to gain from doing it. So the answer would be to give them some incentive. How about charging them rent for the space for the entire time that you have been there and into the future. Calculate the rent on the basis of commercial storage and lost opportunity to use the space for your own purposes. Add in the incentive that you won’t charge for back rent if they move the power board.
By the way, the chances are the power board is past its use-by date anyway and a more efficient solution might be to install a completely new one in the alternative location, then just wire it up when it’s ready to go. Minimum disruption, maximum benefit.
What does anyone else think?
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With no majority instruction SM is unable to act. Is this correct?
Thje strata manager is empowered to act independently in the absence of a clear instruction from the committee. If a breach has occurred and the committee is deadlocked (and there is no instruction to do nothing) the strata manager can and probably should initiate notice to comply proceedings themselves.
Remember, a Notice To Comply is a warning, not a fine.
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Here’s my non-legal opinion. The Act says:
104 Restrictions on payment of expenses incurred in Tribunal proceedings(1) An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.
You were successful. The Act doesn’t say anything about being partially successful. I would email the strata manager and ask them if they really want to go round again and charge another set of costs to the owners.
If he doesn’t amend the motion, I would go to the meeting and ask the owners if they really want the strata manager to play double or quits with their money, given that you didn’t actually lose on the other issues, you withdrew them as a courtesy.
One of those “Do ya feel lucky, punk?” moments for the manager.
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The question of the real estate sign pops up every so often. The sign is on common property so you can tell them to shift or, indeed, charge them rent. Owners in a block like yours often want the sign there when they are trying to sell or rent their property but gone as soon as the deal is done.
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