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There is no legal requirement for any committee member, even the Secretary, to reply to emails, however, it is reasonable to expect an acknowledgement of receipt.
The strata manager is doing the right thing in passing them on to the strata committee as they are the decision-makers.
However, there is a potential political cost attached to not replying when you come up for election every year.
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You’re right to be concerned about this being left too long and your strata manager is certainly erring on the side of caution.
Here’s the thing about “breach notices”. A Notice To Comply is the only legal instrument you can use in the Tribunal system to deal with by-law breaches. It is not a fine, it is a warning – so why would sh send someone a warning to tell them you are going to send them a warning.
Your committee needs to meet and instruct the strata manager to issue a Notice To Comply for each of the by-law breaches. The owner then has to comply immediately or face action at NCAT which could lead to fines and orders.
I can understand strata managers sending a warning notice as a courtesy to people who don’t know or care about by-laws, just to give them a chance to sort themselves out. But giving them six weeks before proceeding with a first step is ridiculous.
After this is done, you might want to look at establishing protocols for by-law breaches. Maybe one warning with a two-week grace period, followed by NTCs
By the way, your Notices To Comply can only list one by-law per per form but can list multiple breaches of that by-law, if need be.
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Proxy forms can be of two types: (a) one where the proxy holder has been authorised to to vote on all matters, as he sees fit (i.e UNRESTRICTED) or (b) one where the proxy holder has been authorised to vote on only certain matters.
Not so. There is one, and only one proxy form or format and it allows either option.
In this case the authoriser would list what those matters are (not what MOTIONS they are) and how the proxy holder is to vote.
I don’t see the difference between “matters” and “motions” (although it uses the words “matters” on the form). If a “matter” isn’t included in a motion, then it can’t be voted on.
Before the start of the AGM, in accordance with the agent’s instruction, you should email him/her the proxy or hand it in at the AGM’s start.
This only applies for smaller schemes of less than 100 lots. Larger schemes have to have their proxies in 24 hours before the scheduled start of the meeting.
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The prescribed proxy form allows the proxy giver to limit what the proxy holder is able to vote on, otherwise they could use the votes for the committee election.
My mind is still boggling from your arithmetic but bear in mind that owners can only hold extra proxies if they are OVER the whole numbers as calculated for 5 percent. E.g. there would have to be 40 lots for them to get two proxies and 140 lots for them to get seven proxies.
So lets assume that you have 141 lots and all your committee members have seven different proxies each, plus their own votes, it means each of them could theoretically have eight votes or a total of 56 votes for the cross-voting in the election. The means there are still almost 90 votes out there.
My tactics in that case would be:
Organise as much support as you can from proxies and owners attending the meeting.
Then prepare to challenge the validity of nominations but be crafty about it. The process should be that the Chair calls for nominations, then the owners vote on the number of seats and if the former outnumbers the latter an election is held.
So let the nominations be recorded, then let the number of seats be established, then challenge any nominations you think may be suspect (referring to Section 31 and Section 32 of the Act and Section 9 and Section 10 of the Regulations.
For instance, co-owners can’t self-nominate and owners can’t nominate more than one person, and co-owners in one lot can’t both be on the committee unless they own two lots. Unfinancial owners can’t be nominated (although they can make nominations).
My point is, committees that think they have the election sewn up get lazy and slack about procedure and they are bound to slip up. If they have nominated someone who isn’t eligible but they have established the committee should have seven seats and you are the nominee with the next highest vote, you’re in.
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This is one of the dumber by-laws I have come across. It’s basically saying you’re not allowed to store stuff here unless it’s … um … stuff. I think what they might have been trying to say is that there has to be some sort of storage facility (like a Box Thing or a mini shed). But that’s not what they said. Ask them to provide a valid legal definition or leave you alone.
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Section 28 of the Regulations specifies the installation of a clothesline as a minor renovation.
But be warned, that section also carries this small print: “The work prescribed by this clause is subject to the requirements set out in section 110(7) of the Act, including requirements that it does not involve structural changes, changes to the external appearance of a lot or waterproofing.”
110 (7) says
“This section does not apply to the following work:
(c) work that changes the external appearance of a lot …Given the fights you have had over this, be ready for your resident bush lawyer to say that this changes the external appearance of a “lot”. To which you will reply – “it refers to a lot, not common property, so bite me!” Or something more polite.
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For the record, in NSW all repairs and maintenance must be paid for from money raised according to your unit entitlements. In other words, you could pay for your own windows and then pay for a share of everyone else’s.
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In our situation there is a serious breach of bylaws, where common property has been appropriated, approx 15 – 20 sqm, astro turf has been laid on it and a hedge installed to isolate the area. What complicates the matter is the lot just went up for sale and these breaches are not addressed and may be inherited by the new owners. The problem with the committee is that the owners who put the plants in have control of the committee.
The best way to get this resolved before new owners come in is to take action for mediation at Fair Trading. This will show up in any strata searches so purchasers will know that the annexing of common property is in dispute. When the current owners have gone, they will no longer be able to control the committee or the strata manager (who should also be looked at).
So, if I were in your shoes, I’d raise the issue via an application under Section 232.2 which basically asks the Tribunal to issue an order to the owners corp or committee to fulfill their responsibilities under the Act. You can find out how to do that, with links to the appropriate forms, on this web page.
The grounds could be:
a) Failure to enforce a by-law. You’d have to specify the by-laws – but they may be a variation of By-law 3(b) and By-law 4 in the Model By-laws [below] adopted by most schemes. Check and see what your by-laws say.
b) Failure to demand a Special Resolution By-law under Section 108 of the Act.
c) Failure to demand that the lot owners abide by the DA under which the scheme was approved by your local council, in which that area was designated as a common property.If the property is, as you say, up for sale then it’s important that you file your complaint with Fair Trading as soon as possible. The most important thing at this stage is that it is on the record – and it will be as Fair Trading will notify the strata manager and the committee of the application.
However, it is also an essential first step in taking the matter further, should you wish to do so. And, by the way, it is free. Take pictures of the annexed area to support your case and look out for false advertising that implies that the annexed area is part of the lot.
You should also get as many other owners as possible to support and assist you, so that you don’t seem to be conducting a personal vendetta.
The application for mediation can be filed online here. You would select the owners corporation as respondent and could name the strata manager as co-respondent.
If it was me, I would also take a separate complaint against the strata manager for obstructing the proper management of the building by trying to deter owners from exercising their legal rights and responsibilities (and allowing the potential for future strif in the future when the new owners discover they have been duped).
At worst, the strata manager will probably only get a stern phone call from Fair Trading but, again, at least it will be on the record for when their contract comes up for review. You can start that process here, under the real estate section (not strata).
NSW strata regulations; Schedule 3 – Standard or model by-laws3 Damage to lawns and plants on common propertyAn owner or occupier of a lot must not, except with the prior written approval of the owners corporation—
(a) damage any lawn, garden, tree, shrub, plant or flower being part of or situated on common property, or
(b) use for his or her own purposes as a garden any portion of the common property.
4 Obstruction of common propertyAn owner or occupier of a lot must not obstruct lawful use of common property by any person except on a temporary and non-recurring basis.
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The strata manager is obliged to follow the (legal) instructions of the strata committee and owners corporation.
The committee, at a properly convened meeting, can resolve to issue Notices To Comply (NTCs) themselves or instruct the strata manager to do so.
The strata manager is also empowered to issue valid NTCs off their own bat, when they see a breach has occurred.
If the committee has met and resolved to issue an NTC, they could do so themselves, using the prescribed form. NB: this is the only valid form that can be used in NSW and must have the by-law that the resident is believed to have breached attached.
If the committee has instructed the strata manager to issue the form and they have declined to do so, you are entitled to ask why as that could be a breach of their contract.
By the way, some schemes and strata managers seem to think you have to issue written warnings first. A scheme may decide to do so as a matter of their own protocols, but this is not a legal requirement (unless it’s written into your by-laws).
A Notice To Comply IS a warning: any punishment only comes after it has been ignored.
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Clearly this is a new system and it has teething trouble. Without know the system, it’s hard to know what options are open to you. But I would have thought a filtered search would have been standard – e.g search for invoices, documents, excel spreadsheets.
Rather than hassle the strata managers, who may not know any more than you about how to finesse the system, see if the software provider has a help section on their website. There you might find what you are looking for if others have had the same problems.
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I received a brief note yesterday saying the issue had been “resolved”. No suggestion of how or what the outcome was, so if you were hoping for some guidance, we’ll just have to live with the reality that some people think this is a one-way street.
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Does this mean that in Victoria if I fix my own windows I do not need to pay to fix anyone else’s windows?
Section 23 of the Act says this:
(3) The fees set must be based on lot liability.
(3A) Subsection (3) applies to the setting of fees relating to repairs, maintenance or other works even if the works are wholly or substantially for the benefit of some or one, but not all, of the lots affected by the owners corporation.
However, section 24(2A) of the current Victorian Act says this:
Fees for extraordinary items of expenditure relating to repairs, maintenance or other works that are undertaken wholly or substantially for the benefit of some or one, but not all, of the lots affected by the owners corporation must be levied on the basis that the lot owner of the lot that benefits more pays more.
That would seem to allow the owners corporation to vary who pays for what when special levies (extraordinary fees) are struck for specific projects. Windows could be a good example – where you fix yours at your own expense and the rest of the block gets their fixed later by raising a special levy.
If you wanted to take advantage of that, you would want a prior written agreement from the OC that you would not be charged for similar common property work done on other lots. You certainly shouldn’t assume that this clause would exempt you from contributing to other repairs.
And this could get very messy if the other repairs were done from the maintenance fund to which you have already contributed. If you were hoping to go down that road, you might do well to talk to a specialised strata lawyer first.
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It may be that the strata manager has their own internal processes for the handling of deposits and refunds that they have to follow (especially since this is a large company).
Wouldn’t it just be easier to establish a by-law that says for tenants:
a) all deposits for tenancies should be covered by the lot owner, with payments for damage or loss of to come from the owner as a debt to the owners corp, and
b) the lot owner is responsible for all damage and loss of keys incurred by the tenants.
That would shift the reponsibility back to owner and agent to collect the deposit (or quarantine part of the rental bond) and pay for the losses and damage.
For owners, the process would have to be handled by the strata manager but since the lot owner is engaged in transactions running to hundreds of thousands of dollars, a couple of hundred bucks is unlikely to be an urgent concern and can wait until the strata management wheels have turned.
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There are so many issues here, it’s hard to know where to start.
First of all, you probably do have by-laws, registered years ago and you should be able to track them down here.
If they really don’t exist, and your block is post 1996, you should propose that the model by-laws in the NSW strata regs be adopted at your next AGM. If your block is actually pre-1996, then these by-laws already apply.
It sounds very much like your strata manager is feather-bedding contracts and taking kickbacks from the contractors. Your committee needs to tell them in so many words that they may not send out any more emergency repair orders without prior consent of the committee. If they do, you will refuse to pay the bill.
Also, you will provide a list of approved local tradespeople for them to use. That means a bit of digging for you but all you need are tradies who can show they are licenced and have insurance.
Remember, the committee is the boss of the strata manager, not the other way round.
Also, check the strata management contract and at the next opportunity, change managers. First, find a new strata manager that suits your scheme better and they will help with the transition.
As for tenants ordering repairs, tell them to take a hike. You are legally entitled to inspect common property for the purpose of assessing repairs and if they don’t want to let you in, then they can live with the problem.
Finally, there seems to be a serious case of several tails wagging the dog here and I strongly recommend that you get the guys at Strata Answers to come along, talk to your committee and try to get things back on track.
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