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Has anyone else had to deal with this kind of obstinance? Please tell me I’m not alone in this frustration!
Just last year I had the same issue with Netstrata whose boss tried all sorts of BS to try to wriggle out of their legal responsibility to provide the strata roll to our secretary, including sending a quote (to our secretary) from Flat Chat where I told a reader they had no legal right to be given the strata roll for free. The genius Netstrata minion who found this, edited out the part where I said the secretary was entitled to receive all the records. Clowns!
What’s the magic word? Did you find a particular phrase or approach that finally made them budge?
They were using the entirely spurious argument of protecting the owners’ privacy. We said we’d keep the files in a super-secure system – even though any owner could rock up to their offices, pay the $35 fee and expect to see and copy the files. Basically we offered them an off-ramp so they could do the right thing without losing too much face. They eventually quit as strata managers saying I had created a toxic atmosphere … but by then the Four Corners report hit our TV screens. Only their developer mate was sad to see them go.
In your case, the magic word might be “tribunal” – as in, “let’s take this to NCAT and get a definitive ruling.”
Do I need to get the whole committee to descend on them like an angry mob (metaphorically, of course)
Get the committee to agree that if the strata manager doesn’t hand over the documents (or make them available), you will take a complaint to Fair Trading, NCAT and Strata Community Association (NSW) and make a submission to the Fair Trading Task Force currently examining issues in strata management
Is the next step a formal complaint to NSW Fair Trading?
You could give them one more chance to provide the documents or else. But don’t make threats unless you are ready to act on them. That said, while Fair Trading’s response will be a slap on the wrist with a feather, no strata management firm likes to be spotlighted in that way and they will get it done.
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Strata committee members must act honestly, fairly, and in compliance with the SSMA 2015 and the scheme’s by-laws. While the offending committee member has clearly failed to meet those obligations, there is no intention to remove him from the committee.
On that specific topic, by doing nothing, the committee is endorsing bad behaviour. There are no Stratakops – someone has to raise a complaint, even if it’s just to make the other party aware that they can’t just ignore the law.
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The SC is not responsible for educating an owner. If the strata manager has advised the offender to submit a retrospective approval application and he decides that his letter is sufficient, then the committee should proceed to vote, refuse the request, and instruct the strata manager to issue a Notice to Comply. If he still refuses to comply, the matter would move to mediation and then NCAT. This would be the fastest path, and it is difficult to see how NCAT would support his position.
I agree. So is the problem that the committee members are dragging their feet? If so, I reckon a mediation application will get them moving. The committee tells the strata manager what to do, not the other way round, so the committee should issue a notice to comply now and get it over with.
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The OC is obliged by law to charge everyone for work done on common property, the costs shared according to their unit entitlements. However, if you feel the work on your balcony in not necessary, and you are being unfairly impacted, you can apply to Fair Trading and NCAT for orders that the work not be done. The cost saving to you will be minimal, but you will be spared the disruption and loss of space and amenity. Have a look at section 232 and consider raising the issue through mediation at Fair Trading, in the first instance.
Regarding the legal fees, if you do go to NCAT and the OC loses, then the cost of their legal action against you must be raised from a special levy from which you must be excluded. That said, you have to take it to NCAT and you have to win.
I would forget the issue of the $3000 limit. It would cost you more to argue that in the Tribunal or a court than you would save.
Going back to your original post, you say the OC’s lawyer: “has advised us we will need to take on all liabilities for the balustrades which includes future owners. We have advised we will not accept the bylaw and its liabilities.”
This is standard practice when one owner wants something done differently with common property attached to their lot. If you are sure your balustrade is building code compliant, why not go with this?
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… the offender is a committee member who are required to upheld the by-law, not breach it.
You have the option to apply to Fair Trading and NCAT for orders under section 238 (a) removing a person from a strata committee or (c) removing one or more of the officers of an owners corporation from office and from the strata committee.
So how offering a CP-by-law option (slow) is a reasonable option?
When you are challenging someone for not following correct procedure, it helps if you follow procedure yourself. I believe the correct procedure is to invite them to either apply for a CP by-law, stressing that approval is not guaranteed, or remove the air-con.
And is there any statutory obligation for the OC to invite a by-law application?
The OC has a statutory obligation to maintain common property. There is a reasonable expectation that they will do this in the most efficient way available. If you know of a quicker, cleaner, less disruptive and less costly way of doing this, by all means suggest it.
In fact, rather than trying to remove the committee member, I would seek mediation at Fair Trading with a view to taking your committee to NCAT under section 232(2) for failure to fulfil their statutory duties. Either way, the mandatory first step is mediation (which costs nothing) and that is often enough to get things moving but at least is the first step to getting orders at NCAT.
One other thing, reverse cycle air-con is considered a sustainability issue and as such special resolution approval would only require a simple majority at a general meeting.
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Having just quoted the Act in reference to another question, I am happy to do so again:
108 Changes to common property(1) Procedure for authorising changes to common property An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.
(2) Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.
Note.If the special resolution is a sustainability infrastructure or accessibility infrastructure resolution fewer votes may be needed to pass it. See section 5(1)(b).Installing fibre to the building must be a change to common property, so a special resolution would be required before work commences.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 committee should ask the strata manager to send a letter to the owner asking them to, within 30 days, either submit an application for retrospective approval via a common property by-law, with an agreement to pay for the by-law and the cost of the meeting at which the application will be considered. Failing that, within the same time frame they should remove the air conditioning unit and repair any damage done.
The CP by-law must contain agreement to maintain the common property to which the air-con unit is attached. If the retrospective by-law is refused, the owner can take action at NCAT to try to have the decision overturned. They will get the chance to present evidence of prior approval at either the EGM or NCAT hearing, if there is one.
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I had a quick look at the act to see if it was all that strict. This is what the relevant section says:
108 Changes to common property(1) Procedure for authorising changes to common property An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.
(2) Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.
Note.If the special resolution is a sustainability infrastructure or accessibility infrastructure resolution fewer votes may be needed to pass it. See section 5(1)(b).I thought you might be able to push this through pre-emptively and get backdated approval at your next AGM – but then look at the wording: only if a special resolution has first been passed by the owners corporation that specifically authorises the … particular action.OK, my next thought is, what happens if you go ahead and do it? There are no StrataKops so you won’t end up in strata prison. If an owner complains, you might have to have that General Meeting or remove the installation. Someone could take you to NCAT for breaching strata law and try to have you removed from the committee or from your position for not acting in good faith.So you have to weight that up against the benefit of doing what you think is good for the building. What are the chances of that happening or succeeding?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 you are seriously worried, find out when the removalists are going to be there and hire a couple of security guards to watch them.
And it’s not naive to hope for the best in people – but it’s unwise to assume that other share your values.
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We can’t ask for a bond the way a landlord can for a tenant…
Many buildings have a removals damage bond that has to be paid by any parties moving in or out. But you would need a by-law and they sould like they would refuse to pay it anyway.
Is there anything we can do to encourage them to leave quietly with no damage, keys all handed over, belongings removed common storage and so on?
Unreasonable people don’t listen to reason. If they do damage property, then it’s criminal damage – nothing to do with strata even if they were staying put.
The stuff left in common property is covered by the Uncollected Goods Act 1995, not the Strata Schemes Management Act. The owners corporation can remove items left on common property, but they must follow specific procedures based on the goods’ value. Goods are categorized as perishable, low value (<$1,000), medium value ($1,000-$20,000), high value (>$20,000), personal documents/memorabilia, or motor vehicles. Low-value items require 14 days’ written notice before disposal, while medium-value items require 28 days. High-value items require an order from the NSW Civil and Administrative Tribunal (NCAT).
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I ran this through an AI interface and this is what it said (and bear in mind that AI can get things wrong):
The new by-law prevails over the old one, even if the old one was never formally repealed. This is because the new by-law replaces the old one through a valid process, such as passing a special resolution and registering the change with the relevant authority. When a new by-law is introduced and properly registered, it becomes the operative rule, and the old one is considered superseded and inoperative.
How a new by-law takes precedence
Replacement: A new by-law effectively replaces an older one. If the new by-law is passed correctly, it makes the previous, inconsistent by-law invalid.
Registration: For a change to be valid, the new by-law, amendment, or repeal must be registered with the appropriate authority, such as the Land Titles Office.
Consolidation: The process of registering a new by-law often requires the creation of a consolidated set of all current by-laws. This consolidated version becomes the official and current set of rules for the strata scheme.
No explicit repeal needed: While a formal repeal is the clearest way to remove a by-law, it is not legally required. If a new by-law is created that contradicts an old one, the old by-law is automatically superseded. The registration of the new by-law serves to remove the old one from force.Important considerations
Proper procedure: For a new by-law to take precedence, it must have been created through the correct and legal process, which typically involves a special resolution at a general meeting.
Registration is key: The change is only officially in effect once it has been registered. Without this registration, the change is not legally valid and the old by-law would remain in force.That is all very impressive but the response quoted this passage from Kerin Benson lawyers which I think may be more reliable.
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How about an email telling owners that, because of unsavoury incidents and illegal behaviour in the past, the committee has discretely installed security cameras in common areas. They have been positioned so that they are not immediately obvious, to avoid intereference, but you can see them if you look hard in the right areas.
Then once the nasty neighbours have gone send another email saying “Sorry, we meant we were thinking of installing security cameras.”
Or find out where they are moving to and send them a letter from the committee wishing them all the very best at their new address.
Or install something like these cheap surveillance cameras
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The offender claims that they had verbal permission from the previous strata manager
As legendary Hollywood producer Sam Goldwyn famously said, a verbal contract isn’t worth the paper it’s written on. Ask the committee to politely invite the offending owner to submit an application for approval, including the necessary by-laws, or remove the air con, or have it removed by a contractor at their expense. If the refuse then consider taking action at Fair Trading and NCAT under section 232(2) of the act for failure to fulfil a statutory duty.
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The committee can recommend refusal of the application on the agenda with an explanation of why that’s the case.
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Why don’t you delay the AGM until after probate? A call to Fair Trading would sort out whether that’s a reasonable thing to do.
Good idea but no need to make that call. NSW strata law says you only have to have an AGM at least every financial year so theoretically you could have a two year gap between them (July in FY1, June in FY2).
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