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Is that correct, JT? Does one have to be a full 100% owner? Can a co-owner nominate another co-owner?
A co-owner can’t self-nominate but they can be nominated by their co-owner. Just to be clear, anyone – owner, tenant, the bloke from the cafe round the corner – can be nominated by an owner who is a) not standing for election themselves and b) up to date with their levies. They won’t necessarily be elected, though.
Also, two co-owners from the same lot can’t be on the committee at the same time unless they own more than one lot in the scheme.
Have a look at Section 31 and Section 32 of the Act, for more detail.
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We have a middle-aged owner who is accompanied by her irascible father at both general and strata committee meetings. The owner is a member of the strata committee but the father is neither an owner nor a resident, nor a proxy holder nor committee member. Both dominate and bully the other owners, with the father lately doing most of the talking.
Someone needs to have a word with the strata manager and the first thing they should be told is that the committee has to vote on whether non-members are allowed to speak at the meeting. That is the law as spelled out in section 13 of Schedule 2 of the Act (and it’s up to you to persuade the other committee members to vote no).
Then you could put a motion to the committee instructing the strata manager to instruct tradespeople that they are only to deal with them (the strata manager) or a nominated member of the committee (the secretary or chair). Tradespeople should be told clearly that taking instructions from any other owners will be a breach of their contract and could see them lose the work.
You might also look at proposing Standing Orders or a Code of Coduct to be adopted as a by-law at your next AGM. You’ll find some thoughts on that HERE.
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How can we shine a light on this? Get them to step down maybe.
You have a number of options and it depends how dirty you’re prepared for your hands to get.
In the case of the unapproved renovation, report it to the council planning department. If they refuse to do anything, report them to the Local Council Ombudsman.
In the case of the self-serving chairman, gather your evidence, and as much supoort as you can get from other owners, and begin action at Fair Trading and NCAT under Section 238 to have the chairman either removed from the chair or from the committee entirely. They might jump before they are pushed if there is too much dirty laundry to be aired.
Regarding the pliant strata manager, you could apply for the compulsory appointment of a strata manager to take over the running of the strata scheme under Section 237. Be sure you have a good strata manager ready to work with you if you go down this tricky route.
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As much as I loathe the “this is an issue between two residents” excuse for the owners corp not getting involved, I suspect this is one of those rare cases where that’s valid.
It seems like common property is not involved and it’s hard to divine what by-law has been breached.
That’s not to to say you don’t have a case, just that the owners corp doesn’t really have a dog in this fight.
The positive aspect from your point of view is that it has previously been established in a NSW court that the landlord has a responsibility for the behaviour of their tenants.
Record the door slamming, then present Fair Trading and NCAT (if it ever gets that far) with the evidence.
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First organise as many owners as you can to support your plan – especially those who would serve on the committee if the nasty person wasn’t there.
Then you vote at the AGM to reduce the size of the committee to the same number as that group. This is a mandatory vote that should be taken at the start of the committee election.
Then you present your “ticket” which excludes the disruptive member and ask for people to vote you in as a group because there are things that need to be done and the committee hasn’t been functioning properly.
Also, scrutinise the nominations – for instance, if the disruptive owner is actually a co-owner, he can’t self-nominate, and he can’t self-nominate if he’s behind in his levies.
If anyone objects to your “ticket” strategy, tell them it’s all or nothing. No one is prepared to stand if the previous pattern of disruption and abuse continues.
You can do all this in the virtual meeting without naming names. And familiarise yourself with Schedule 1, and Section 31 and Section 32 of the Strata Act. In fact, print them out so you can quote chapter and verse on the correct procedures which you should insist must be followed.
This is your best chance to fix this problem. Talk to other owners, be prepared and get tough if you need to. Hurt feelings and bruised egos can be dealt with later.
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Log in.In this instance, you have a post visible so you can go to the “deeper dive” step, below.Otherwise, when you can’t call up any of your old posts, type your screen name (not your username) into the “Search Forums” box near the top of the Forum page. That will bring up some of your recent posts.For a deeper dive, then click of your screen name at the left of one of your posts and that will take you to your profile where you will see “Topics started” and “Replies Posted” on the left and you can click on them to get to those posts.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.
This is a long-running debate is strata schemes, and one with no simple resolution. Insurance commissions were about to be swept away the last time the laws were changed but the smaller players in strata management ponted out that their whole business model was based ion getting these commissions and that they would go to the wall.
The result might have been that the smaller strata schemes would have been swallowed up by bigger companies, or would have lost strata management altogether, and would have suffered as a consequence.
So, yes, insurance commissions are normal practise. And yes, your strata manager will be mightily annoyed if you try to take it from them.
That said, there are larger strata management firms that give their schemes a discount equivalent to the commission.
However, if you negotiate your own strata insurance, the insurers will not give you the commission as they see it as a payment to the strata managers for doing a lot of the heavy lifting on their behalf with claims and negotiating the terms of the coverage.
Are you happy with the strata management service you are getting for the money you are paying? If not, that is the more significant question.
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1. Is this ByLaw ineffective due to the lack of owners’ signatures?
2. I have heard that after two years despite a lack of signatures, the ByLaw would be valid and enforceable. Is this true?This is what Section 143 of the Act says:
(1) An owners corporation may make a common property rights by-law only with the written consent of each owner on whom the by-law confers rights or special privileges.
and …(4) After 2 years from the making, or purported making, of a common property rights by-law, it is conclusively presumed that all conditions and preliminary steps precedent to the making of the by-law were complied with and performed.
So my reading of that is that your summary in your second question is correct. However, if on owner or subsequent owner of an affected property wanted to challenge the by-law withing the two years, I suppose they might.
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NSW fairtrading is not a court. You can’t approach them to solve your issue. You need to approach NCAT.
Just to be clear, Fair Trading is not a court, true, but it can resolve issues by mediating an agreement between two parties to find a mutually agreeable resolution.
Critically, in most circumstances you have to apply for mediation at Fair Trading before you can apply for orders at NCAT. An individual owner seeking orders against another owner or their tenants (under section 153) would definitely require an application for and attempt at mediation which you would have to attend although the respondents can choose not to.
As Kaindub said, this is not a court, however attempted mediation is a necessary prerequisite for seeking orders at NCAT (in most circumstances).
The section cited for taking your strata committee to NCAT for failure to act is section 232 (2).
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Hi, all these parking issues has me thinking, is there a difference between a “non owner, non resident” parking a car on a Strata Property or Private Property . thanks
The issue of non-resident car space owners has made it all the way to the Supreme and Appeals courts, as this story and this follow-up illustrate.
The problem with the non-owner, non-resident arises when a non-resident car space owner rents the space to another non-resident. Not sure if m’learned friends have topped up their super funds on that one yet.
The most common, non-resident, non-owner is the rogue parker who knows that there’s not very much we can do about people who park illicitly in strata schemes (usually because they are convenient to their work or train stations).
As non-residents, they can’t be sent Notices To Comply and, since our laws on the protection of cars dates back to the days when you could be hung for stealing someone’s horse, they are offered a ridiculous level of protection.
The responses therefore tend to be either to increase security of access to the building or something informal like blocking them in (illegal), vandalising the car (very illegal), letting down tyres (dangerous and illegal) or issuing an implied threat such as the polite “don’t park here again” note held in place on the bonnet by a house brick.
Oh, and I just re-read your question. If a non-resident parks on private property – like your driveway – that is trespass and you can call the police and they will have the car removed. If it’s on common property, the police will say it’s not their problem because strata owners don’t count (well, they don’t say that but you can tell they’re thinking it).
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Further to my original response (below), I’d like to make a couple of additional points.
Firstly, my tactic in this case would be to hit the landlord and illegal parkers with breaches for everything all at once.
Take the landlord to Fair Trading (mediation with a view to getting NCAT orders) for failure to put the the head tenants name on the strata roll. Hit the head tenant for the same thing with the sub-tenants.
Hit the landlord for failure to control the behaviour of their tenants. Put “Move it or we will” posters on the illegally parked cars (the new version can be downloaded HERE).
And before you do anything, get professional advice from one of our sponsors – StrataAnswers or Sachs Gerace Lawyers.
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The SSM Act in NSW allows owners corporations to make a by-law delegating certain decisions to be made by the strata committee. For example, minor renovation decisions. Does this also apply to decisions on whether to issue Notices to Comply for breaches of by-laws and breaches of the legislation by lot owners and tenants?
Paragraph 3 of Section 146 “Notice by owners corporation to owner or occupier” specifically allows this, albeit in a roundabout way, and you don’t need a special by-law. It says “A notice must not be given unless a resolution approving the issue of the notice, or the issue of notices for the type of contravention concerned, has first been passed by the owners corporation at a general meeting or by the strata committee of the owners corporation.”
The specific problem one of my son’s strata scheme has is that some tenants continually park in front of other lots’ garages which means the persons legally entitled to use the garages cannot get their cars in or out, sometimes for several days in a row. They do not have a by-law allowing cars to be towed. Notes left on windscreens do not work. It is quicker to convene a strata committee meeting than an EGM which is important when someone has been blocked from using their car in circumstances such as that mentioned above.
As outlined above, you don’t need to hold an EGM every time you ping an illegal parker. You do, however, need to make sure you have a standard by-law (which you probably have) forbidding parking on common property without written permission. The prescribed Notice to Comply Form requires that the by-law allegedly breached be listed on the NTC.
Query 2: Are there any other functions or decisions that can be delegated to a strata committee? The owners corporation would like to list those delegations in the one by-law.
Section 36 of the Act says that the decisions of the committee are the decisions of the owners corp, and the owners corp can pass resolutions at a general meeting preventing the committee from making specific decisions. However, for the sake of clarity, it would be worth having a by-law that says the committee can make all decisions on behalf of the owners corp, except for those that the Strata Act says must be made in general meeting or have been proscribed by a decision made at a general meeting .
Query 3: A tenant is sharing a unit with people whose names are not on the lease. We doubt that there is a sub-lease of any kind because the landlord denies knowing anything about additional tenants but we don’t know if he is being honest because he was accused previously of allowing over-crowding in his unit. There is no parking spot allocated or even available to those additional tenants and they constantly park on common property and in front of garages as stated in Query 1 above.
Section 258 requires the owner to give the notice of the holder any leases (Maximum fine for failure to do so $550) and the head tenant to give notices of sub-leases (maximum fine $550). So, if the landlord hasn’t provided that information, you go after them on that (Fair Trading mediation then NCAT). If/when they do provide the information, you then go after the Head Tenant for not providing information on the other occupants of the unit. You might do well to set up a security camera to monitor comings and goings from the unit and car parking area as proof of breaches.
3.1 Technically, additional tenants’ cars are trespassing aren’t they?
This has more to do with breaching by-laws about parking on or obstructing common property without permission. Trespassing is entering “inclosed grounds” without permission. They could say they had the permission of the tenants.
3 2 Are owners allowed to photograph the offending cars which show the registration plates as proof?
Yes. You can photograph or film anything or anyone on common property (although you may have to put up a notice at the entrance to the block notifying visitors that there is video surveillance inside).
3.3 Are owners allowed to search who owns the offending cars? If not, who can? A solicitor?
As far as I know, only the police can do this, and under specific circumstances (such as if a crime is suspected)
3.4 Can a lot owner or the owners corporation sue those additional tenants in the local court for trespass because their cars are not supposed to enter the property at all?
Have a look at this web page and this one, then talk to a strata lawyer. I have just noticed that section 34 of the Regulations and 125 of the Act which allowed vehicles left (or abandoned) on common property to be removed have both been repealed. This has been replaced by reference to the Uncollected Goods Act according to this Fair Trading web page. I will be amending my “Move it or Lose it” poster to comply. Watch this space.
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Although Bannermans have pointed out a loophole in the law, they themselves suggest that it can be fixed with a by-law. generally speaking the government is keen for individual strata schemes to govern their own circumstances this way, rather than by issuing laws that tend to be blunt instruments (as so accurately described by Kaindub).
Personally, I can’t see how your committee has any conflict over this. An owner has installed a floor and the result is intolerable noise. The downstairs neighbour’s right to the peaceful enjoyment of their lot over-rides the other neighbour’s desire to install cheap flooring.
The committee needs to get on to this and support the afflicted neighbour and pass a by-law to cover future incidents. The issue is noise, not the materials on the floor. The Tribunal is likely to order that the noise issue be fixed, rather than specify any kind of flooring … and that’s as it should be.
The committee doesn’t have to see both sides of the story. They are not adjudicators. The law is simple and the committee’s job is to protect and support people who have suffered because by-laws and/or strata laws have been breached.
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I don’t think that the original question ‘as I am an owner is the Managing Agent obligated to send me a complete breakdown of all of the expenses?’ has been answered.
The strata manager is not really obliged to send you anything, but they are obliged to let you see any records and correspondence related to the strata scheme. This may involve you making an appointment, going to their office and paying a nominal set fee (about $30) for doing so.
If you want to keep a tighter grip on your expenses, then look at the service provided by our sponsors Stratabox, whereby all owners can potentially track all expenses all the time.
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