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There is no argument over the legitimacy of this situation however it means the Manager doesn’t have the support of a majority of Owners.
The law in NSW says the manager can only be appointed at a general meeting. I would have thought renewal of a contract would be the same as appointment.
At a general meeting you could carry the other owner’s proxy and it might come down to a poll vote (unit entitlements) too. Also, if the vote (at a general meeting) is on a motion to renew the contract and there is a tie, the motion fails and the contract is not renewed.
I have never heard of this kind of three-month rolling contract before and it sounds like an elaborate way of the strata manager looking like they have support of the majority of owners while getting round their legal obligation to end or renew their contract after three years.
Rather than drag someone on to the committee who doesn’t want to be there, I would wait until the next AGM and make sure that the wording of the motion to renew means that when it is tied the outcome is that the motion fails and the strata manager has to walk.
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If you want some serious expert insight – from a strata lawyer and a strata law academic – have a look at Amanda Farmer’s chat with Cathy Sherry online on Facebook this afternoon discussing precisely that question.
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Is it possible to include a motion in a General Meeting (rather than an AGM) to approve levy collection with no increase in NSW.
Not sure what you mean? Are you trying to overturn levies set at a previous AGM?
To answer the fundamentals of your question, you can propose any motion for a general meeting whenever you like. That motion must then be put on the agenda for the next general meeting to be held or, if there is enough support from other owners or from the strata committee, a specific general meeting can be organised to discuss the issue.
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The law says by-laws can’t be “harsh, unconscionable or oppressive”. You could argue that the by-law ticks all three of those boxes and if NCAT agrees, your owners corp may have to go back to the drawing board.
The easist ways to find out are to:
- Ignore the by-law and fight the Notice To Comply breach notice when it arrives, or
- Challenge the by-law at Fair Trading and NCAT pre-emptively.
- Tell your strata committee that you think the by-law is invalid, for the above reasons, and as a result you will be ignoring it.
The latter tactic is pretty much saying “bring it on” and you may prefer a less aggressive response. But if you are being hrassed in any way, tell them you believe the by-law is invalid and you are happy to see that tested at the tribunal.
I recall reading somewhere that the by-laws can’t deny residents reasonable access to their apartments and forcing you to carry your pet up five flights of stairs could easily be defined as unreasonable.
A sensible by-law would require you not to enter the lift when there was someone already in it who objected to travelling with a pet.
For what it’s worth, this sounds like a strata scheme trying to get round the removal of “no-pets” by-laws and they have found a particularly clumsy way of trying to do so.
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Well Fair Trading may have given you correct advice but I don’t know if it’s the best advice. You are now looking at the garden being permanently installed with no regard to your or anyone else’s amenity.
They are obviously going to try to portray you as the baddie and themselves as the goodies. You need to turn that perception on its head.
First of all, ask for the email addresses of all the other owners, on the grounds that they had misconstrued your position and this needs to be rectified.
They will probably refuse on the grounds of privacy and you can tell them that privacy laws don’t apply to corporations of less than a $3m p.a. turnover and that you are entitled to see every document that the owners corp hold and that includes the strata roll and a list of email addresses.
Then you can write to the other owners and ask them to reject the “all or nothing” proposal and instead ask the committee to come up with a compromise that limits the spread of the garden and its visual intrusion, including that bins and composting is hidden and that tools and accessories are tidied away every day.
Point out that your and other owners’ amenity – the outlook – are being sacrificed to boost the amenity of one owner, the hobby gardener.
Point out that very few other people use the garden and then in very limited ways.
Point out the ratchet effect of by-laws – easy to pass on a whim, impossible to change even when only a minority of owners want to retain them.
Come up with your own compromise solution, even if it’s only a rough idea, to show that you are not being Nimby about this.
Finally, if you are reticent about speaking out, consider talking to our sponsors Strata Answers who will offer practical help and advice (for a fee).
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Thanks for your comments and suggestions! Our AGM has been scheduled at 5:30pm via zoom. The time is very inconvenient for people. So I requested via email the time to be rescheduled at 7pm. We had a face-to-face AGM last year at 7pm. But the strata manager refused to change the time. Is there anything I can do here?
Not on your own, no. If you want to change anything you are going to have to get support from the other owners. Otherwise you are just whistling in the wind.
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I’m looking at two expenses in the AGM notice: Cleaning, $1,309.00; Cleaning & Lawns, $11,715.00.
We only have cleaners to take out rubbish bins and very basic common property cleaning. We don’t have lawns to maintain. I don’t see anything done around the building. This big cleaning & lawns cost looks very suspicious to me. We are a small scheme fewer than 15 units. Should I ask this at AGM or beforehand?
Get a quote from one of the Franchise firms like Jim’s Mowing (and cleaning etc). Before the meeting ask the committee to provide the scope of works that the cleaners and gardeners have been given, they should provide this for the meeting. Also at the meeting ask how they were awarded the contracts and how many other service providers were asked to quote.
Be aware that by the time you have done this, you will be very unpopular with the incumbents and they will move heaven and earth to keep you off the committee.
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Nice try JT. We all know that to enforce a bylaw , it takes time and a visit to NCAT.
True. And I know I may sound naive, but the fact that there is a by-law and you could get fined for breaching it is usually enough to get most people to pull their heads in (although probably not proto-fascist libertarian anti-maskers).
Perhaps if parliament has the time they could legislate these issues and remove a lot of the grey area.
LMAO! You mean when they are not eating themselves alive? If nothing else, their response to the spread of covid has exposed that our parliamentarians have no idea how to deal with strata. They have their heads struck in Quarter-Acre-Block thinking and just can’t deal with the concept that a home can both be private property and partly community-owned. And as soon as this pandemic is under control they won’t want to hear the word “strata” again for at least a couple of years.
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One can beg and plead with other parties to comply, but you can’t take any action save reporting them to the police.
As you can see from this story, this is an issue currently being wrestled with by a lot of strata committees. I wonder if you could pass a by-law that said something like “breaches of Public Health orders with regard to behaviour on common property will be considered a breach of our by-laws related to appropriate behaviour and will be dealt with accordingly, including the issuing of notices to comply and the application of financial penalties.”
At the very least it would put anti-maskers on notice.
As for the proof of vaccination, I’ll be interested to see what various strata committees come up with. Hard to police, harder to enforce.
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There is no provision in the act to revote a motion that has passed or failed. It stands as it was voted on in the first place, unless the poll vote tips the result the other way.
True, but I can see an informal situation where a chair might encourage, say, members who had abstained to decide one way or the other in a re-vote. Would that be legal, strictly speaking? No. Would it end up in the decision being challenged at NCAT? Possibly, but I’ve never heard of it. We all know that smart strata chairs will bend the rules a little just to keep things moving forward. But I should have made it clear that was an informal option.
Any motion can be amended at the meeting.
True, but this would have to happen before the deadlocked vote or the “no re-vote” situation would apply. I can see this happening in a small scheme or one with poorly attended general meetings where the chai had counted heads and knew there was going to be deadlock.
A candidate can be not elected if the number of positions to be voted for are less than the number of candidates.
Not sure what you mean by this. That is exactly the scenario in which an election would be held otherwise all those nominating would join the committee.
In reality, if the correct process is followed – nominations, followed by a vote on the number of seats, followed by an election if needed – the meeting decides whether or not it wwants an election.
This is often used as a way of keeping people off the committee that the incumbents don’t want there, or a way of taking over a committee by a new group using the support of a majority of owners.
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If there is a tie and I demand a poll vote, could they deny it?
No. Any owner entitled to vote can call for a poll vote at any time during the meeting.
What do you mean by unit entitlement? Is it the number of unit an owner owns in the strata or the entitlement related to the size of the unit? I know that every unit has a different entitlement in our strata because of different sizes.
Unit entitlement is the figure by which your levies are calculated. It’s also the measure of your voting strength. You really need to download, read and absorb the Fair Trading publication Strata Living.
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Will I be allowed to record the whole meeting, since it will be a virtual meeting, just for the sake of reviewing at a later time just in case? Last year, they did something very bad against the strata law/rules in the meeting, but I don’t have any evidence to go to NCAT later.
You’ll have to tell them you are planning to do that, as recording what someone says without their knowledge is an offence. But if they know you are recording and they keep talking they have effectively given permission.
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What should I tell a committee member who wants an agenda item: That the strata committee discuss any further items of business that attendees wish to raise at the meeting and resolve how those will be dealt with at a later meeting (noting that depending on the nature of the item, it may not be able to be resolved at the meeting)
Clearly someone is trying to get round the fact that you can’t discuss anything that’s not on the agenda when you can’t have “any other business” as an agenda item. This person’s mistake is to include a motion with the word “resolve” in it.
There’s nothing wrong with having a general discussion after the end of the meeting provided no vote is taken.
A competent motion might be “This meeting agrees to hold a discussion following the end of the meeting, open to all residents, during which items for future meetings can be canvassed although no vote will be taken.”
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Another question, what would happen in the AGM if a voting ends with a tie, for example voting for a member for the committee or over a strata issue?
You’d go to a poll vote (counting unit entitlements). If it was still equal you could call for a re-vote, in case someone changes their mind. Finally the status quo would prevail in a decision on an issue. Not sure with a committee election – I think you would re-do the process but just add one seat so that both tied owners were elected.
What you would not do is to allow the incumbent candidate in a tie to automatically keep their seat. The chair doesn’t have a casting vote in NSW.
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But what invariably happens with strata managers is that they get a phone call gently suggesting they lift their game. But at least they are on FT’s radar and they really don’t like that. That’s why it’s worth doing it, even though no strata manager in NSW has ever lost their licence through sheer incompetence (and there have been plenty of candidates).
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