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they likely will (as they don’t usually contradict themself on straight forward matters, and as inferred/discussed with the Commissioner’s office), and being a recent event I haven’t gone that way yet,
There are processes that could be followed to resolve this. You may find that when actual BCC involvement is flagged (rather than just threatened), the other side will cave.
However, if you are looking to punish the committee for not listening to your wise counsel, remember that Confucian saying: “When you go seeking revenge, remember to dig two graves.”
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The NCAT member is right. Section 132 could not be much clearer. It says up front: “The Tribunal may, on application by an owners corporation for a strata scheme …”
If you were advised to follow this line by a lawyer then they have an obligation to fix it. If you didn’t use a lawyer, then maybe you should now.
If it were me (and I’m not a lawyer) I would start a new proceeding under Section 232 seeking orders that the Owners Corp either create a proper by-law (which passes ongoing responsibility to the individual lot owners) or requires them to reinstate the walls.
Ironically, the OC might have to use 132 to achieve the latter. I think it’s important to pursue this as it is about the fabric of the building. I would worry, however that it may be timed out, so you may have to move quickly.
In the meantime you might prepare a motion for your next committee meeting that the permission given for the work was incompetent. In that case, the committee should take appropriate action, on behalf of the owners corporation, to require the lot owners to either reinstate the walls or agree to a by-law that would see them take responsibility for any deterioration of common property due to the work they have done.
If the committee rejects the motion, that would trigger section 232.
As an aside, your actions should be framed as protecting the building rather than trying to punish owners who have taken advantage of their positions. The former has a solid legal basis, the latter is more likely to be viewed by external adjudicators as a petty internal squabble.
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Unfortunately, I’ll disagree with you completely. Seems the Queensland Body Corporate Commissioner’s ACT and adjudication rulings differ to your suggestions, and assumptions also.
If that’s the case, why aren’t the BCC adjudicating in your favour? I’d have thought you’d have gone to them with this rather that the local constabulary (who, quite rightly IMHO) have decided to stay well out of it.
The best way to do things isn’t always the strictly legal way. Most strata schemes in Australia are non-compliant with the laws in some way at some point. There are some battles where surrender is actually a victory. I would just let it go – small war, not many dead.
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I have heard of strata schemes deliberately choosing to have more seats than candidates, so that the elected committee can then co-opt additional members at a later date,
But my eye has been drawn to the following section of Schedule 1 of the Act:
35 Vacation of office of elected member of strata committee(2) A strata committee may appoint a person eligible for election as a member to fill a vacancy in the office of a member of the strata committee, other than a vacancy arising under subsection (1) (d) …
And 1(d) says this:
(1) An elected member of a strata committee vacates office as a member—
(d) at the end of the next meeting at which a new strata committee is elected by the owners corporation, or
It’s a bit murky but it seems to suggest that if the vacancy has arisen during the election of a new committee, then it can’t be filled by co-option. And, if that’s the case, that would mean that leaving seats vacant is not strictly legal. I’m sure others on this forum will have opinions that may not concur with mine.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.
Absolutely correct, my mistake. I just wonder about self-interested committee members pushing through by-laws for acceptance by unwitting (or unengaged) owners that magically turn major renovations into minor ones.
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Probably the simplest thing you could do is contact the building’s strata insurer directly and ask if they’ll cover the damage. Then get in touch with other owners and explain why they need to sack the strata manager before they cost you even more money.
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I understand that the number of members of the strata committee is dictated at the AGM by the number of eligible persons willing to stand. We currently have 4.
No, the chair calls for nominations then the owners at the meeting vote on the number of people they want to be on it, with a minimum of one and maximum of nine. If they decide on a committee with fewer seats than there are nominees, they hold an election.
Can we increase the number of members via an OC meeting putting forward new nominees or do we have to wait until the next AGM?
No. But you could hold an extraordinary general meeting then follow the procedure laid out in Part 2 of Schedule 1 of the Strata Act, if only on the grounds that you have been doing it wrong until now (if that’s the case) and you were putting things right..
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NCAT follows the Act, not what some mug wrote on the internet.
Having posted this on the internet, do you include yourself as a “mug”? Just checking.
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There have been cases cited in these pages of new Fire Safety Inspection companies demanding an expensive upgrade of buildings, especially new ones that they have recently taken over.
This can be for a number of reasons, most of them valid.
One would be that the fire safety measures in the building were out of date due to changes in legislation.
Another would be that they want to get everything right before they take over the contract.
A third would be that they want to provide a Rolls Royce solution to a Toyota Corolla problem because they can make more money that way.
The authorities are unlikely to allow you any leeway, regardless of the age of the building. They are simply concerned with fire safety, irrespective of the cost.
However, you can ask the inspectors to itemise what in the building is no longer compliant and under which aspect of changes in the law.
It may be that requiring them to justify each of their charges rather than impose a one-size-fits-all solution could save you a lot.
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If our Owners Corp approves a list of what we consider to be “minor” modifications, providing the approval process was done properly and on record, would future owners be legally responsible for those modifications?
I’m not sure that anything that affects common property can be considered a “minor” modification. And if the changes don’t affect common property then the responsibility for them lies with the lot owners.
I assume not and therefore “minor” modifications would need to be carefully thought through and not venture into areas that might be considered “major” that would require a by-law to attach ongoing responsibility to future owners.
Fair Trading’s Common Property Memorandum is a good place to start and strata law allows you to adopt that in one fell swoop via a by-law. By the way the regulation supporting it specifically forbids redefining what is and isn’t common property.
If we then wanted to approve a list of “major” modifications in one bylaw, can we do this? Or do we have to take out separate ByLaws for each item?
I’m not sure that a strata scheme can use by-laws to reassign what is minor or major modifications.
And you need to have separate by-laws for each reno project to some extent because the lot owner must agree to take responsibility for the changes they make to common property. You really don’t want the owners corp to be stuck with responsibility for changes made during a reno, which is the default position if the owner doesn’t sign up to a common property by-law.
This would certainly be worth running past a strata lawyer (have a look at the ads on this page) but I would suggest that you might be able to draw up a catch-all by-law that allowed changes under the terms of Section 109, Section 110 and Section 111 of the Act and Section 27 (Common Property Memorandum) and Section 28 of the Regulations, plus but not exclusively, any changes specific to that project.
Thus you could have something approaching an off-the-peg common property rights by-law that could be easily adapted for each particular owner and their project.
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I do apologize – I let some of my pent-up frustration come out.Been there, done that, got the t-shirt. Strata can be an incredibly frustrating business. Have a look at what OCN (ocn.org.au) does in educating and supporting owners. They are the main reason NSW is a couple of years ahead of any other state in Australia when it comes to building communities.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.
Assuming the agenda for the revised meeting date hasn’t been issued, the question is whether this is a new meeting or or the same meeting as before.
Unless the meeting took place at the time and date on the agenda, and then suspended to a later date, you’d be tempted to think this is an entirely new meeting with a new agenda. That takes us to the rules for motions which are set out in Section 4 of Schedule 1 of the Act (see below).
As you will see from 4 (4), items that miss the deadline – which is the issuing of the official notice of the meeting and distribution of the agenda – must be included in the next meeting agenda after that.
If your agenda has been issued, you’ve missed the boat and there doesn’t appear to be any legal basis for forcing motions to be included.
If nothing else, this is a salient reminder to us all to submit motions in writing (with a maximum 300-word explanation) for consideration at the next general meeting which might easily occur before the next AGM if, for instance, someone needed by-law approval for a renovation.
But, in summary, if your AGM agenda hasn’t been issued, your written motions must be included. Otherwise, submit the motions in any case, in the knowledge that they must be included in the next general meeting.
4 Inclusion of matters on agenda(1) Any owner, or any person entitled to vote at a general meeting of an owners corporation, may require a motion to be included in the agenda of the next general meeting of the owners corporation.
(2) The requirement is to be made by written notice given to the secretary of the owners corporation that—
(a) sets out the required motion, and
(b) states the name of the person making the requirement, and
(c) includes an explanation of the motion of not more than 300 words in length.
(3) The secretary must give effect to the requirement.
(4) However, if the requirement is made after notice has been given of the meeting, the secretary must include the motion in the agenda for the next subsequent meeting.
(5) An owner or a person may make a requirement even if the owner or person cannot vote because the owner is an unfinancial owner.
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It beggars belief that anyone would take on committee responsibilities without making themselves aware of those responsibilities – it ain’t that difficult!
Belated response to this: There are things we know, things that we know we don’t know and things we don’t know that we don’t know.
If you are never told that there is stuff you need to learn and where to find that information, and no one around you knows either, how does an ordinary punter who just wants to lend a hand even know where to look or what they are supposed to be looking for?
That’s why Fair Trading has announced a big push to educate strata committee members
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You people talk about looking up an Act of Law as if it is normal; as if it is something everybody automatically knows how to do – but it isn’t. I am not a lawyer and I never had the need to pretend I was one before.
I’m not a lawyer either. At first I just Googled “Strata Act” and then built up my knowledge from there (over several years, it has to be said). Wherever I can, I put the link to the Act or the relevant section, so people can access it themselves, if they are interested.
That said, phrases like “you people” and “pretend to be a lawyer” are just a bit insulting, especially when people are trying to offer you advice free of charge.
But I’m not entirely sure where I would find the management statement for my scheme either. I thought that philjonk’s comment was a little harsh but I don’t think it was directed at you.
I think its good that you have a strata manager. The problem with having someone on the committee who knows everything they need to know is that they leave a vacuum when they go off, taking the knowledge with them.
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I have noted two special by-laws registered on a Strata Plans which are clearly invalid.
The second is relates to maintenance of Child safety window devices … which states: “Clarify the provisions on window safety devices in the Management Act to make it clear it is an owners corporation responsibility to ensure that the devices are maintained”As you rightly point out, section 118 clearly states the responsibility for childproof window locks is the OC’s “at its own expense”.
118 Window safety devices—child safety(1) An owners corporation for a strata scheme to which this section applies must ensure that there are complying window safety devices for all windows of each building in the strata scheme that are windows to which this section applies.
Maximum penalty—5 penalty units.(2) An owners corporation is to carry out work related to its functions under this section at its own expense and may, for the purposes of this section, carry out work on any part of the parcel.
I am doubtful the current Strata Manger and committee will take any action to repeal these by-laws any time soon, and it may require a motion by a lot owner to be put at the next AGM. Does such a motion require a 75% majority for a repeal or just a simple majority.
So be that owner and add an item to the agenda of the next general meeting to repeal the by-laws and explain why. And yes it will require a 75 per cent vote (of those actually voting at the meeting) but if you explain that owners who allow unsound by-laws to remain leave the scheme open to expensive litigation by anyone who refuses to comply, that might focus their thoughts.
The other alternate is lodge a dispute and start mediation / take tribunal action, which is the least desired option.
Or you refuse to pay the fines and let them take you to NCAT where you can get the by-law kicked out. In your situation, I would probably start by asking for mediation at Fair Trading purauant to applying to NCAT unser Section 150, repeal of by-laws. It’s more hassle for you and at least that keeps you on the right side of the issue.
NB: You continued this discussion by opening a second thread. I have merged the two together as that is not permitted on this website. Please choose a lane and stick to it – JT
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