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How about you get the adjoining strata scheme to issue an invoice for your scheme’s share of the fence works?
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There should be a warning given to the miscreant, or more than one, which needs to be documented, and the response considered.
I’m okay with one warning but there is a myth that you have to issue three. A Notice to Comply IS a warning and I can’t find anything in the Act that says there has to be a written warning beforehand. That said, procedurally, a warning followed by an NTC would look better at a tribunal. However, I have seen tribunals reject NTCs because the tenant said they weren’t aware of the by-law, even though their landlord had provided a copy and the by-law they had breached was listed on the NTC (as it must be).
I would pass a motion at committee level insisting that breaches should generate one warning (and only one) then a Notice To Comply. Remember, you don’t get to the Tribunal stage until after the NTC has been issued then ignored.
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Whatever the strata management contracts says, and whatever the intent is, it can’t over-ride strata law. That means that as long as you scheme follows the law, there can be no comeback when you find a new strata manager and get rid of this current one.
By the way, the contract may have been written before the new laws came in so it may be an accident rather than a deliberate attempt to subvert the legislation.
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The best guide you will get to future expenditure is to compare buildings of a similar size and facilities that are maybe four or five years older. That said there are so many variables, from the quality of the original work to where the installation sits in the building and the effect of prevailing weather that you are never going to get 100 per cent accuracy.
Regarding whether or not you include GST in the quotes, it sounds like the surveyors are trying to minimise the cost assessment in every way possible. Since GST is unlikely to change any time soon, I’d include it.
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The Bannerman article is pretty comprehensive but raises issue about control of the scheme as well as the allocated levies. In this case, as well as paying more, the townhouse owners have greater voting power and the Tribunal might not want to upset the balance.
One option might (an I stress might) be to get 75 per cent of owners to agree to extinguish the existing scheme and create two new schemes under a Community Title arrangement. I don’t know how feasible that is and it strikes me that it’s going to be hard to get the apartment owners to agree to any changes as they will result in legal costs followed by increased levies on a permanent basis. You can’t get turkeys to vote for Christmas.
One option might be to pass by-laws isolating apartment-only payments from townhouse-only payments. Either way, speak to an experienced strata lawyer to explore the feasibility and costs of any options.
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The issue with the wall is clearly a case of changing common property without the correct permissions. You could explain to your committee that you have the option to take them to the Tribunal to resolve the situation if they don’t tell the builder to fix it or compensate you for the loss.
The fact that this is extra work for the builder is not your problem.
Regarding the tenant, if they demand a rent reduction, negotiate a reasonable figure and then charge that back to the strata scheme. It might be better to involve a third party like a real estate agent or a Fair Trading mediator, if only to establish that the figure is reasonable. I have heard of landlords encouraging their tenants to take them to Fair Trading, just to establish a figure that the strata scheme can’t easily reject.
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This is covered by section 50 of the Act which basically allows the maximum three-year contract to be rolled over three months at a time, in the absence of a strata scheme’s decision to terminate or renew. Once you are in the roll-over period, you have to give the manager one month’s notice of a decision to terminate. It is designed to ensure schemes have a manger in place even when the maximum term is up and they haven’t got round to re-appointing or choosing a new one. These roll-overs can’t extend beyond the next AGM.
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You could calculate the unexpected expenditure on repairs (not defects) over the past five years, average it out and add 5 per cent, then factor that into your budgets.
The chairman of a building I know well used to announce at every AGM that “there is no slush fund” until I pointed out he was defaming his predecessors by implying they had been finagling the finances. Also they eventually, inevitably needed an emergency payment. They now have a “contingency” fund which, of course, is a slush fund by any other name.
If you announce your plan at your next AGM, the owners can decide whether or not they want a contingency fund or would rather pay special levies as they arose.
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The only situation I would be concerned is if the admin funds became ridiculous.
Worth remembering that excess funds can only be returned to owners (in NSW) if there is a unanimous vote (as in, no votes against) to do so.
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As detailed in this post, you could put up a motion to a general meeting or committee meeting that the committee or strata manager be instructed to pursue any owner for specific breaches of by-laws.
If they fail to do so, Section 232(2)(e) of the Act allows owners to take action against the owners corporation (or committee) for “an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme.”
This is something you would have to pursue yourself or in conjunction with other aggrieved owners. There are no StrataKops who will do this for you.
That said, the simple act of applying for mediation as a precursor to an action under Section 232 would probably have a galvanising effect when the facts of strata life are laid out for all concerned.
Meanwhile, Section 35 of the Act allows a simple majority of owners at a general meeting to remove a committee member from the committee.
Section 45 of the Act allows a simple majority of committee members to sack an office-bearer by declaring an “office” vacant and electing a new member to fulfil that office (but they can remain as committee members).
Section 238 of the Act empowers the Tribunal to remove a committee member at its discretion or at the request of an owner or owners.
Bear in mind that any or all of these could have the effect of
1. Making the owners and committee members aware of their responsibilities and
2. A declaration of war.
However, if the committee’s argument is that they don’t want to do anything because it might cost the scheme legal expense, that excuse evaporates as soon as you say “I’m taking you to the Tribunal anyway”. It’s the old argument of, do the right thing and get on with it, or be forced to and pay the additional expenses of trying not to, but have to do it anyway when you lose.
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A post about owners who moved their hot water tank into the roof space without notifying the OC or seeking permission (the post has since been removed at the OP’s request) illustrated how this apparent annexing of common property roof spaces can happen, possibly quite innocently.
Did the apartment owners not know they needed permission or was it a case of it being easier to apologise after the event than seek permission beforehand? In any case, it was resolved with retrospective permissions.
Being asked to sign a document like the one described by the OP might have avoided this.
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Also, I think the strata manager may be reluctant to table the question of the appointment of a replacement as this could be seen as a conflict of interest until a new committee is in place to assess applicants.
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I should have offered the third option – nothing has changed (as in this case).
In your position, I would try to tell other owners that by ignoring this issue, they are making themselves vulnerable for future expenses – such as, if a new owner buys the apartment and demands that the owners corp maintain the A/C as it is on common property.
As for costs, a majority of owners can instruct the strata committee NOT to hire lawyers and make it clear that if they do so, it will be at their own expense. The law is unusually clear on this and any owner at any time can raise the issue at NCAT and can even take the committee to the Tribunal for failing to fulfill its duties under the law.
I wouldn’t waste another breath on arguing the point. Take it to mediation (which is compulsory) then to NCAT. And get the complicit committee members and strata manager removed while you’re at it.
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