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I am still quietly obsessing about my (merely brilliant) idea of a strata disputes panel. You get one strata lawyer, one strata manager and one former or long-standing committee member. The plaintiff states their case in 15 minutes, the respondent responds. The panel retires for 20 minutes to consider and returns with a verdict.
If they are unanimous, they tell the “loser” that they don’t have much chance of success at a Tribunal. If it’s a split verdict they explain why and suggest a compromise.
In the first scenario, the loser will be told that pursuing a ‘hopeless’ case means they could have costs awarded against them if they go to the Tribunal (something that the law already allows for). It’s a form of mediation with a resolution, rather than passively encouraging aggrieved owners to doggedly persist on a matter of principle.
Just think, strata disputes resolved in an hour, rather than after weeks and months of grief and grievance with little certainty of the outcome. But, of course, that would need Fair Trading and the Attorney-General’s office to meet in the middle and, as anyone who has ever watched Yes Minister or Utopia will know, that cannot ever happen.
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I have not been keeping up with the forum lately. Apologies if this has already been mentioned. Anyone, who can get to Strathfield, Sydney next week, should attend.
For some reason, Fair Trading didn’t pass this on to me. Maybe they don’t want Flatchatters turning up, asking informed questions and making relevant comments. Or perhaps it’s just another SNAFTU (‘sanother Fair Trading upstuff).
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This website is chockablock with questions and complaints from strata schemes that didn’t follow correct procedure when changes to common property were made without authority and they were left holding the baby when the renovator sold out and moved on, leaving some sort of DIY mess behind them.
The laws are there for a reason. The amended Act says this in section 37:
37 Duty of members of strata committee(1) Each member of a strata committee of an owners corporation has the following duties—
(a) to exercise the member’s functions—
(i) with honesty and fairness, and
(ii) with due care and diligence, and
(iii) for the benefit, as far as practicable, of the owners corporation,
(b) to comply with this Act and the regulations,
Failure to pursue an obvious breach of by-laws and of the Act itself, looks like a breach of 1(a)ii and iii and 1(b). It would be interesting to see how the Tribunal viewed such laxity.
To put it another way, if committee members are too timid or lackadaisical to uphold their own bylaws and strata law, they shouldn’t really be on the committee in the first place.
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Escalating this to Fair Trading would tescalate this even further than you clearly want to go.
How about asking your secretary or strata manager, on the basis of no names, either of the copulators or yourself, to send out a reminder to all residents that offensive activity on common property is a breach of your by-laws and apartment balconies are common property.
If everyone gets the notice, then fingers need not be pointed. For your reference, the model by-law (which you probably have on your schemes’ books), is by-law 7.
7 Behaviour of owners, occupiers and invitees(1) An owner or occupier of a lot, or any invitee of an owner or occupier of a lot, when on common property must be adequately clothed and must not use language or behave in a manner likely to cause offence or embarrassment to the owner or occupier of another lot or to any person lawfully using common property.
(2) An owner or occupier of a lot must take all reasonable steps to ensure that invitees of the owner or occupier—
(a) do not behave in a manner likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or any person lawfully using common property, and
(b) without limiting paragraph (a), that invitees comply with clause (1).
Again, as I said, your balconies are common property in most buildings. Make it clear that you are not looking for any direct complaint or action to be taken – just to let the bonkers know they can be heard and that’s not how to behave in an apartment block.
Do it this way and the worst that can happen is that there will be a whispering campaign trying to establish who is doing what to whom, where and when. Oh, the scandal!
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Is it likely that premiums will go up should owners not be prohibited from this type of behaviour in the future?
Interesting thought but insurance premiums tend to go up after actual claims rather than in anticipation of possible problems (beyond what’s already insurable). For instance, I have yet to hear of premiums being raised because there might be electric scooters in a block.
On the other hand, if the scheme doesn’t resolve this, there may be occasion win the future where they have to make a claim – shoddy work leads to a disaster and a new owner of the property refuses to pay, for instance.
My rule of thumb would be if it needs to be done, get it done. Make it clear to the owner why they are in breach of the law and how fighting this in court, without a valid legal defence, could mean that they are up for all costs.
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So to your original question – there is no law that says you can’t contact the SM.
And there’s no law that says the strata manager has to read or reply to your messages. In fact, if your committee tells them they won’t pay for corresponding with you, there’s nothing much you can do except get rid of the committee at your next AGM.
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As long as you have a majority in favour on Tribunal action, then you can proceed. There aren’t many issues in strata that require unanimous approval, and this isn’t one of them.
In fact, if you don’t proceed, even if other committee members drop out, owners in your block could take the committee to NCAT for failure to fulfill its statutory duties (section 232[2]).
I realise that the “cost” of your time is referring to the effort you are making rather than a financial impost. However, just to clarify, the Tribunal will not compensate committee members for time spent pursuing a case. They will, however, allow for a claim for costs if you employ a lawyer but even then in limited circumstances.
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on new members – a former EC member resigned at the last AGM and was not replaced – do we have to wait until another AGM or ESM to vote more members on?
If the proper procedure was followed at the last AGM, the OC would have decided on the number of seats on the committee. The implication of a vote to decide the numbers required on a strata committee is that a vacancy should be filled as soon as reasonably possible and the committee has the power to do that by asking for volunteers and electing one of them.
Conversely, if there is a vacancy and an owner asks to fill it, then the committee should allow that person to join or present another candidate whom they can elect.
In my building, the chair asks people who are planning not to stand for re-election to resign before the AGM so that the chair and the other committee members can choose their replacement who will then stand a better chance of being re-elected at the next AGM than if it was an open vote. It’s called branch stacking in other areas of politics.
Regarding your definition of “quorum”, that is not the case. The way to avoid tied votes in NSW is to set an odd number of seats on the committee. As described above, a vote on the number of committee members is a legally required part of the election process at an AGM.
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It’s worth noting that, for the purposes of non-discrimination, the Ageing and Disability Commissioner Act groups people with age-related issues along with people with other disabilities.
It’s also significant that the SSMA section 5 states that changes to common property for accessibility require only a simple majority (not a super-majority as for a special resolution) while section 132C outlines the issues the scheme should consider including “the extent to which the use of the accessibility infrastructure will be available to all or some of the lots in the strata scheme” and “the extent to which not installing the accessibility infrastructure will cause or be likely to cause detriment to be suffered by … the person requesting the installation of the accessibility infrastructure.”
But there’s another potentially overriding consideration – Safework NSW says that stairs must have at least one handrail if they are narrow and one on each side if they are wider. It also defines stairs as having at least two risers. So it could be that the strata scheme doesn’t have a choice – if there are stairs, there should be a handrail.
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There are many areas in strata schemes that are common property but only limited access is allowed. Communications and electrical switch board cupboards being an obvious case. On the other hand, in some states, incl the balcony is common property but only the owners of the adjoining lot have access to it.
Why isn’t it lot property? Because balconies profoundly affect the look and even the physical integrity of the building and it’s easier to maintain them and set standards for their use if they are common property.
The lift lobbies in this building fall into that category, which is common property but which is normally only accessed by the adjoining lot owner and so it feels like lot property. But the lot owner does not have the right to forbid legitimate access by agents for the strata scheme or, indeed, do whatever they want on it.
This is why smoke drift has become an issue in a lot of buildings; the strata scheme has the right to create by-laws covering the use of common property and people affected by smoke drift get frustrated when their neighbours on the committee or at an AGM refuse to do anything about it.
So the person on the top floor who doesn’t want tradies traipsing through “their” lobby should be quietly reminded that it’s not theirs exclusively and in an extreme situation, they could be ordered to remove all their stuff and repair all the holes in the wall from their picture hooks.
However, the committee is not going to do that but maybe they will let them know when tradies require access and they can sit on a deckchair and watch them pass by, if they want. But if they do so stark naked and/or shouting abuse at the workers, they could get a notice to comply with the by-law that says you can’t behave offensively on common property.
Common property isn’t always just common property but common sense is always common sense.
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Even as an ordinary owner you are entitled to view the strata roll and it must have the email addresses of the other owners on it. See section 178 and section 183 of the Act. However you may have to attend the strata manager’s office to do so.
The strata manager only has to supply the strata roll to the secretary of the committee – but there is nothing stopping you from asking for the strata roll and reminding the SM that you are on the committee, if only to save you the hassle and expense of going to their office.
A couple of other points.
- What do you mean when you say you don’t think you have a quorum? A quorum is established when at least half of the members are in attendance. The number of members is established by a vote at your AGM. Even if you voted for seven members, four in attendance would be a quorum.
- The committee can only invite owners to join it if there is a vacancy. This could occur when a member quit and wasn’t replaced or the OC voted to have more members on the committee than volunteered to join it.
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So who is entitled to vote other than owners?
Non-owners can vote if they have valid proxies from owners. But owners and their proxies can’t vote if they are not financial when the meeting is called and haven’t paid their levies before the meeting. This is what the Act says:
23 Persons entitled to vote at general meetings(1) Persons who have right to vote Each owner, and each person entitled to a priority vote, has voting rights that may be exercised at a general meeting of the owners corporation, but only if the owner or person is shown on the strata roll and, in the case of a corporation, the company nominee is shown on the strata roll.
(2) Exercise of voting rights by joint first mortgagees or joint covenant chargees Voting rights may be exercised at the meeting by joint first mortgagees or joint covenant chargees only by proxy (who may be one of them) duly appointed by all of them jointly.
(3) Exercise of voting rights by owner, first mortgagee or covenant chargee The voting rights of an owner or first mortgagee or covenant chargee of a lot (other than a co-owner, mortgagee or covenant chargee) may be exercised—
(a) unless the owner, mortgagee or covenant chargee is a corporation—in person or by proxy, or
(b) if the owner, mortgagee or covenant chargee is a corporation—by the company nominee in person, or by proxy appointed by the corporation.
(4) Exercise of voting rights by co-owners to be by proxy The voting rights of co-owners of a lot may not be exercised by them individually but may be exercised—
(a) by a proxy (who may be one of them), or
(b) as provided by subclause (5).
(5) Other circumstances in which co-owners may exercise voting rights If, on a vote at a general meeting, the rights of co-owners of a lot are not exercised by a proxy as referred to in subclause (4), one of them may act as such a proxy—
(a) if the other co-owners are absent or those who are present give their consent, or
(b) if paragraph (a) does not apply—if he or she is the owner first named on the strata roll as one of the co-owners.
(6) Exercise of voting rights by owners of successive estates in lot If there are owners of successive estates in a lot, only the owner of the first estate may vote at a general meeting.
(7) Exercise of voting rights where owner holds lot as trustee If the owner of a lot holds it as trustee, a person beneficially entitled may not vote at a general meeting.
(8) Voting rights cannot be exercised if contributions not paid A vote at a general meeting (other than a vote on a motion requiring a unanimous resolution) by an owner of a lot or a person with a priority vote in respect of the lot does not count if the owner of the lot was an unfinancial owner at the date notice of the meeting was given and did not pay the amounts owing before the meeting.
(9) Effect of failure to give strata interest notice This clause does not confer a right to vote on a person deprived of the right by failing to comply with the requirement to give a strata interest notice.
When does the strata committee not become an SC? At the beginning or end of an Annual General Meeting? That is, can they still act as committee members when voting on motions takes place?
Owners can vote with their committee or against it as they please. There is no law that says all the members of a committee have to vote en masse or prevents them from doing so. Committee members are only acting as committee members in a committee meeting. Unless theyare office-bearers they have no function or privileges beyond being ordinary owners.
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I don’t think you need a by-law.
Section 153 of the Act specifies cigarette smoke as a potential nuisance.
153 Owners, occupiers and other persons not to create nuisance
(1) An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not—
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
(b) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
(c) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.Note: Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.
Section (a) covers people smoking on their lot, sections (b) and (c) would cover people smoking on common property.It seems to me that your majority could hold a committee meeting to agree to initiate proceedings at Fair Trading (which is free) then go to mediation and then, if need be, press for orders at NCAT.But bear in mind that some smokers can be among the most selfish and antisocial people you will ever meet. So don’t expect to prevail without a fight.Have a look at this blogpost from last year, where two smokers in a block tried every nasty, bullying tactic to avoid having to stop smoking on their balcony, despite evidence that their smoking (and probably the stress) was exacerbating their neighbour’s asthma.The good news is that they eventually lost, but this will give you an idea of the lengths they went to, trying to show that they were the victims.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.