Forum Replies Created
-
Replies
-
The NSW Act requires committee members to act with “due care and diligence” and “good faith” is assumed or implied – see sections 36, 37 and 260 below).
According to the ACCC, “in good faith” means acting honestly, including when that is against your own personal best interests.
Gibbs Wright Lawyers go into it in greater detail, regarding contract law, stating that it encompasses notions of fairness, reasonableness, standards of decency; and fair dealing.
The thing is, it’s not a defined legal principle (although it does have legal implications). Just Google the term and you’ll get a dozen slightly different definitions.
In any case, the critical factor for strata committees is that they act with “due care and diligence”. So the scenario you have raised above is not about “good faith” and you could conceivably argue that, by paying higher insurance premiums so as to avoid the expense of improving fire safety measures, the strata committee has breached one of its fundamental duties.
Isn’t failing to to meet the prescribed levels of fire safety a failure of due care and diligence? If so, committee members can’t say they acted in good faith if they knew fire safety measures weren’t up to scratch.
However, if different fire inspectors reached different conclusions from the initial insurers, then it’s hard to say the committee did anything worse than save money by taking a riskier option.
37 Duty of members of strata committee
It is the duty of each member of a strata committee of an owners corporation to carry out his or her functions for the benefit, so far as practicable, of the owners corporation and with due care and diligence.
Note—
Section 260 provides protection from personal liability for members of strata committees who act in good faith.
38 Acts and proceedings of strata committee valid despite vacancies or defects
(1) This section applies if, when any act or proceeding of a strata committee was done, taken or commenced there was—
(a) a vacancy in the office of an officer of the owners corporation or any other member of the strata committee, or
(b) any defect in the appointment, or any disqualification, of any such officer or member.
(2) Any act or proceeding of a strata committee done in good faith is as valid as if the vacancy, defect or disqualification did not exist and the strata committee were fully and properly constituted.
260 Personal liability of officers of owners corporations and others
(1) A matter or thing done or omitted to be done by any of the following persons, or a person acting under the direction of any of those persons, does not, if the matter or thing was done or omitted to be done in good faith for the purpose of executing functions as such a person under this or any other Act, subject any of the following persons or person so acting personally to any action, liability, claim or demand—
(a) an officer of an owners corporation,
(b) a member of a strata committee.
(2) Any such liability of an officer of an owners corporation or a member of a strata committee attaches instead to the owners corporation.
If 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.
I wonder how many properties on short term rental platforms are negatively geared, vs those that are positively geared?
According to the SMH this morning, the ATO is about to crack down on claims by investors who are deliberately under-pricing their holiday lets for friends and family. Also, the term “negative gearing” is misleading. I believe all that’s required is that you claim the expenses of your investment rentals against your income. And you don’t have to be in the red to get significant tax breaks. All you do is reduce the income from the holiday lets by the amount of expenses and then you are taxed less.
That said, it seems a bigger issue is the under or non-declaration of holiday let income. Maybe just hunting them down and taxing them would be enough. The new register of holiday lets in NSW could be a happy hunting ground for the taxperson.
If 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.
You must first off calculate the cost of the lawyer versus your expected gain in dollars. Even if you lose the case, you are still up for the lawyer’s fee and if you win the case, you may still be out of pocket.
That’s exactly the point the judge in this WA case was making, when he called taking legal action a “folly”
If 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.
Notwithstanding an over-zealous strata committee and building management, your biggest problem may come from the local planning authority which will have calculated the number of parking spaces it wanted the block to have when it issued the DA. Be ready for this to be cited in your committee’s objections.
Might be easier just to shrink the cage (assuming it’s lot property) and eventually introduce a car to the space. Or tell the committee you want the space for a mobility scooter. Or tell them you are getting an electric car and this only requires a special sustainability resolution (dubious but worth a try).
Or … sometimes it’s easier to apologise after the matter than ask for permission in advance. Just be sure not a single centimetre of car intrudes over the line and into common property.
If 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.
I think the OP means it should be recognised as a national disgrace that people are being charged $200 a week to live in a tent. Or don’t you agree?
If 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.
OK, to clarify, as they are owners of separate properties then there is no issue with them both being on the committee.
As for member A nominating member B to represent them on the committee, that is up to the committee to decide (and it has agreed to this).
The problem is whether the two owners have “failed to exercise due care and diligence” or if the Tribunal might feel they had seriously misled the owners in the building when they stood for election knowing one of them was going to be absent for most of the year.
The simplest way for you to resolve this may be to request mediation at Fair Trading (which is free), asking the chair to hold a vote to remove the approval of the substitution with a clear message that if they fail to do so you will seek the removal of the absent member AND their partner from the committee under section 238.
I’m still not sure how one member of this couple can go on holiday for a year and leave the other one to attend committee meetings, but there you go.
And just to be clear, you are not going to get definitive legal advice on this forum. We can only point you in the direction of the law and usual practises.
This is very much one of those cases of “suck it and see” when it comes to strata law and the first thing you need to do, if you wish to pursue this, is request mediation at Fair Trading (which you would need to do if you were going to take this to the Tribunal in any case).
If 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.
The Act forbids more than two members of the same household both being members of the committee unless they own two or more properties in the block.
I’m not sure (from the way you have written your post) what it is that you are actually saying. Are the people you are actually referring to spouses? Do they also own separate properties? Or is this just hypothetical?
If 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.
There is another option which is probably a long shot and that is to take action at NCAT under Section 238, for the removal of a committee member.
Section 238 says this:
238 Orders relating to strata committee and officers(1) The Tribunal may, on its own motion or on application by an interested person, make any of the following orders—
(a) an order removing a person from a strata committee,
(2) Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has—
(a) failed to comply with this Act or the regulations or the by-laws of the strata scheme, or
(b) failed to exercise due care and diligence, or engaged in serious misconduct, while holding the office.
While it would be hard to argue the specifics of either 2a or 2b you could argue that the absent member never intended to serve on the committee and, as such, misled the owners when they stood for election. The very fact that they announced that they would not serve for a whole year and passed their vote to another owner immediately after the AGM may be considered grounds for removal.Remembering that this will have to go to mediation first, your committee might decide to rescind the substitution rather than allow a vacancy to be created that they would be under pressure to fill.If 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.
If the committee agred to the substitution for the whole year, then it probably is as you outlined and B has two votes.
If a super-majority of owners is concerned about this, then you can hold an EGM and pass a special resolution to remove either or both of these members from the commitee.
Otherwise, you can propose a motion to the committee that it rescinds the substitution as it was a cynical and deliberate ploy to give one owner two votes on the committee. The absentee committee member muct have known they were going on holiday for a year so this is very much dirty pool.
Even if the committee doesn’t rescind the substitution, at least your objection will be on the record.
If 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.
The sections quoted say this:
(3) This section does not apply to a particular item of property if the owners corporation determines by special resolution that—
(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.
(4) If an owners corporation has taken action against an owner or other person in respect of damage to the common property, it may defer compliance with subsection (1) or (2) in relation to the damage to the property until the completion of the action if the failure to comply will not affect the safety of any building, structure or common property in the strata scheme.
Not sure where (4) comes in but if you can get a special resolution through and the tiles are other wise sound and safe, you might get away with it.
If 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.
… given that the payment plan motion was previously defeated, what has changed that would change the vote?
It may be as simple as not enough people who agreed with the proposition bothering to turn up or send votes in, assuming that this sensible proposal would be adopted.
A few highly motivated “antis” can often defeat a majority of apathetic and disengaged.
If 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.