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This is a tricky one becasue it’s a building defect that should have been fixed in the first 6 years of the building’s life, but is it common property? I don’t think tiling and waterproofing on an internal wall is common property (happy to be corrected on that if I’m wrong).
So my take would be to go back to the committee and offer to share the cost of repair and remediation on the grounds that if they don’t, you will run this through NCAT just to get a definitive ruling. Half the cost of repairs against all of the legal costs and maybe all of the reapirs might be a gamble the committee doesn’t want to take.
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A different aspect of this issue has been raised HERE. This is perilously close to double-dipping. Please pick one thread and stick to it.
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Section 30 of the Strata Schemes Management Act says the committee must be elected at each AGM and may also do so at a general meeting called to elect members of the committee.
Those words “must” and “may” are critical. They imply that if the owners want a change of committee members between AGMs they can call a special meeting, but they OC still MUST have an election at its AGMs.
You might consider requesting mediation at Fair Trading (which is free) as a precursor to taking action at NCAT under section 232 (2), seeking orders from the Tribunal to hold a committee election ASAP.
Section 30(4) The members of a strata committee—
(a) must be elected at each annual general meeting of the owners corporation, and
(b) may be elected at another general meeting called to elect members of the committee.
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It sounds like this is a “complying development” and here’s what the NSW government says about those:
Internal alterations
Some internal alterations to existing dwellings and ancillary development may be carried as complying development. This includes:
- new openings
- doors and
- changes to the internal floor layout.
To be complying development, internal alterations must not result in any of the following:
- a change in the building classification under the Building Code of Australia (BCA)
- an additional separate dwelling
- the creation of an additional floor within a dwelling
- the erection or conversion of a basement for residential uses.
Please refer to these provisions in the State Policy for a full list of development standards relating to internal alterations as complying development.
Okay, so what exactly is a complying development? This is what the NSW Planning website says:
Complying development is a fast-tracked application process that combines planning and construction approval for straightforward residential, commercial and industrial development. Approvals can be issued in as little as 20 days, or 10 days for the NSW Housing Pattern Book complying development pathway.
These fast-track approvals are determined by council or an accredited certifier without the need for a full development application if the proposal meets specific development standards.
Complying development generally includes larger building works than exempt development. For this reason, ‘sign off’ by a building professional (known as a certifying authority) is needed.
A complying development certificate is not required for building work that is exempt development, or subject to a construction certificate. For more information on this type of development, visit our Exempt Development section.
And what is Exempt Development?
Exempt development does not need planning or construction approval from a council or private certifier. It includes some minor building renovations and low impact works.
Exempt development can be done for certain residential, commercial and industrial properties including decks, gardens sheds, carports, fences, window repairs and house painting.
So, to answer your question, your neighbour is probably applying for an complying development which is a fast-track approval that only requires the authorisation of a qualified and registered professional.
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According to Section 19 of the strata scheme management Act, a secretary must call a general meeting withing 14 days of receiving a “qualified request” from a sufficient number of owners.
This is what the section says: “A request is a qualified request for the purposes of this section if it is made by one or more owners of a lot or lots in the strata scheme having a total unit entitlement of at least one-quarter of the aggregate unit entitlements.”
In the case above, we can assume that the strata manager is acting as the OC’s secretary. In which case, I wouldn’t even bother with mediation and just make a complaint directly to Fair Trading. But mediation in a case like this shouldn’t take more than a couple of weeks – if the SM even allows it to get to that stage before doing the right thing.
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The law and the Tribunal are both very reluctant to declare meetings and decisions made at them invalid because of a flaw in the process.
Section 24 of the Act, which establishes the right of the tribunal to invalidate a decision made at a meeting where correct procedures were not followed, specifically says the Tribunal may not do so if it would have made no difference if correct procedures had been followed.
For instance, Jeff supports Irene’s candidacy for the strata committee, but Jeff’s vote is wrongly excluded because he is incorrectly thought to be behind with his levies. However, even if Jeff’s vote had been allowed, Irene would still have fallen short and would not have been elected. The election result stands, despite the flawed proceedings.
Similarly section 38 states (not in so many words) that defects in the appointment of strata committee members can’t be used as grounds for invalidating decisions made by the committee.
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The strata legislation assumes that the election of a strata committee occurs at the AGM meeting itself, with the office holders being elected from within the committee at the strata committee meeting held immedately afterwards.
You may well call BS but the law is not what you have selectively quoted. The idea of limiting the number of nominations to the number of seats and vice versa is all well and good, but what if there are people who want to be on the committee who aren’t part of the ruling group, for instance.
At our last AGM, the rusted-on committee, hand-picked by our chair using the provision for replacing retiring members, had not faced an election in about 10 years. When one other owner tried to join, I suggested that one of the members who complained about “having to take part” and others who didn’t make it to all the meetings should withdraw to avoid the vote that they were grumbling about having to administer. This was met with sullen silence.
And how do people who are participating in the meeting remotely and therefore “in attendance” vote?
Perhaps the committee or OC could agree that an email in a specified format, received during the meeting would be accepted as a valid vote. Otherwise, you have to find a way of letting people vote or face a potential barrage of legitimate complaints about election fixing.
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I can see the strata manager’s point. If the OC has decided to allow elections by electronic means, then they have to be done according to the regulations which insist that every owner votes by writng the names of the people they want to elect on a blank piece of paper – ie, not a voting slip with pre-printed names – to which they also add their name, the capacity in which they are voting (owner or proxy) and their signature.
I can’t see how else an election that allows electronic voting could otherwise be conducted legitimately. The SM or secretary could send out a sheet with the names of all the nominees, but wouldn’t the actual votes have to be lodged as described in Section 10 of the Act while Section 14A(a) says an election can’t be decided by pre-meeting electronic voting but Section 10 says the notice of the meeting “may” specify the electronic voting may be allowed.
Having said that, I’m guessing the strata manager just wants the owners to agree on filling the seats with who’s available to avoid having to gather and count the votes.
A smart compromise would be to allow the hand-written votes at the meeting, collect them uncounted, and then allow those attending electronically to send in their votes within 24 hours.
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It’s actually surprisingly simple. The balcony is common property. If the building is less than six years old, then the defect should be fixed by the developer. If it’s more than six but less than ten, it should theoretically be fixed by the builder (good luck with winning that fight). In reality, it’s down to the owners corp to get the job done now and start looking for someone to blame (and pay) afterwards.
If a previous committee has let the defects issue slide, and a claim would be timed out, then the current owners corp has to carry the can for the fix.
Having recently sold out at a loss because I could see how my committee was bumbling and fumbling along while the developer used every trick in the book to deflect and delay, all I can say is that every new scheme should get on to the defects issue and play hardball until they are fixed.
In this case, the owners corp and committee should be making plans to fix the defect. If they refuse or delay, the downstairs owner has the right to take the committee to Fair Trading and NCAT for failure to fulfil their statutory responsibilities and seek orders forcing them to get the work done.
This is one of those cases where “buyer beware” comes into play. Anyone who bought into the scheme without checking whether defects had been dealt with properly, within the statutory time period, has to accept their share of responsibility for what happens next.
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I’m looking for some free legal advice really.
First up, to be clear, the opinions we offer can’t be considered “legal advice”. We are not lawyers and while you might take our opinions as a guide to your next step, if you want legal advice you should talk to experienced strata lawyers.
Now there are a number of important issues that you might want to consider here. They include the importance of getting the building repaired, whether or not the building has an excess on its insurance, whether a claim will have any effect on future insurance premiums and – as a secondary consideration – whether or not the owner has excess on their insurance.
First, the OC has a statutory duty to maintain and repair common property. That is beyond question.
If the building has no excess on its insurance – i.e. the owners corp has to pay, say, the first $1000 of any insurance claim – then it may be expedient to claim against the building’s insurance because then you don’t have to prove that a resident was driving the car that caused the damage.
However, if there is an excess or a claim would affect future premiums, then you might want to pursue the car owner’s insurer. The other issue – whether or not the car owner’s insurance has an excess amount on it – is all about maintaining good relations in the building. But suffice it to say that if the strata scheme has an excess on its insurance and you are collectively paying that to save one owner from paying theirs, then that’s just wrong.
As for the process of the strata manager informing the committee members, it’s really up to the committee to inform other owners through having a meeting and establishing the decisions and why they made them in the minutes.
In reality, with this kind of situation where everything is done on the quiet, and the only difference made is whether one insurance company pays rather than another, and the Owners Corp (that’s you) doesn’t suffer one way or the other, right and wrong take second place to what’s easy and what’s hard.
This may become trickier when the committee and the strata manager deliberately mislead your building insurer by telling them a lie – e.g. that they don’t know who caused the damage. If that came out later, depending on how strict the terms of the contract are, deliberately misleading your insurer could invalidate your insurance when a claim for something more serious is made.
in summary, if the strata manager is pursuing a building insurance claim because that is easier to achiever and it just happens to also help out an owner with no consequences for the other owners, that I can’t see what harm is being done.
However, if they are saving one owner’s wallet at the expense of the owners’ corp, that needs to be snuffed out immediately. The only way you will know which is which is if they minute these discussions.
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