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Well done! Can I ask if it’s an open-air or enclosed car park, and what constitutes illegal parking there?
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Your strata manager needs to go back to strata manager school.
First of all, there should have been nominations established at the AGM, which the strata manager should have checked against the roll.
Then he or she should have declared nominations closed and called for a vote on the number of members that the owners want to be on the committee.
That number, or the lack thereof, will determine what happens next.
The two wrongly nominated members of the committee are not members. That is a fact of life – if they complain, well, maybe they should have done some research before presenting themselves for office. The law is the law.
Now, assuming that the SM followed procedure and asked for a vote on how many members the committee should have, that number stands.
If it was seven, you now have five seats filled and two vacant, and this is where it gets interesting Section 35 (2) of the Act says: “A strata committee may [my emphasis] appoint a person eligible for election as a member to fill a vacancy in the office of a member of the strata committee … Any person so appointed holds office, subject to this section, for the balance of his or her predecessor’s term of office.”
I emphasise the word “may” as I believe there is no compulsion to do so. If three out of your five active members decide they don’t want either or both of the invalid nominees to join the committee – or if they want someone else entirely who would have been valid for election – then they can decide on that basis. There are vacancies and they can fill them with whomever they want.
On the other hand, if proper procedure was not followed, and a number of seats on the committee was not agreed, then you could be in even more of a mess. My advice in that case would be to say that the five nominees were valid, so that is the committee. The owners corp has not said they want more than five so if anyone wants to challenge this at NCAT, let them.
This is all laid out in Section 9 and Section 10 of the Strata Regulations and section 35 (2) of the Act.
By the way, if this turns nasty, be aware that there are other electoral potholes that strata owners frquently fall into, especially people standing for election and cross-nominating each other and two part-owners from one household both sitting on the committee.
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Crispy said: “I do not agree that imposing a fine is a form of bullying …”
I don’t think fining residents for by-law breaches is bullying – and that’s not what I wrote – but demanding payment for “costs” that have no legal basis definitely is.
I am aware of one major strata law firm that advises its committees to hammer residents with these bogus costs claims, knowing perfectly well that they are unenforceable. Sooner or later someone is going to complain about them to Fair Trading (who will do precisely nothing except maybe tell them to stop … maybe).
And I am aware of some committees who use the threat of costs to silence dissenting owners.
I completely empathise with any committee that’s having to deal with serial offenders and have often written that issuing several warnings before issuing a Notice To Comply is a waste of time and sends out the wrong signal.
I think communities only work when a fair set of rules is imposed fairly – and that means giving people a chance to stop their bad behaviour and then hammering them when they choose not to change their ways. That is precisely what Notices to Comply are for, and they are undermined by threats of bogus “costs” payments.
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Search the website for keywords like “roof”, “loft” or “extension” (but not “common property”) and you will find a stack of posts about this very topic.
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Agree with Scottie – unless the costs notices are from NCAT or a District Court they are invalid. Some schemes send these out to scare residents – especially tenants – into obeying by-laws. It’s a form of bullying.
Nevertheless, your tenant sounds like a piece of work – he won’t park his car in the garage and now he won’t pay his rent because of an invalid fine.
You are being bullied by both parties but there is a simple solution – the tenant can be evicted for non-payment of rent. The committee can be invited to take you to NCAT to try to enforce their illegal fine.
You just need to extricate yourself from this situation and you really don’t need a law degree to do it.
If you need help, contact our sponsors Strata Answers who will sort things out for you for a small fee.
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The first thing that occurs is why do you need three swipes for two cars? Is it the same swipe for the front doors?
Apart from that, unless there has been some by-law breaching behaviour, you strata committee is over-reaching by demanding that you don’t allow access to your son and his car.
However, if he is permanently parking in a visitor space, that’s another story.
But in summary, you are entitled to write to the committee and ask what the problem is and what is the outcome they desire. If the “problem” is a member of your family coming and going as they please, and using your car space when you aren’t using it, they’d better gird themselves for an embarrassing backdown when NCAT tells them to get back in their box.
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Unlike NSW, Victoria still requires a unanimous vote for a decision to sell off all the units and the common property in an apartment block (according to Section 32 (g) of the Subdivisions Act 1988) and according to this factsheet from Consumer Affairs Victoria, a unanimous vote means means a vote all owners, not just all owners who vote.
So even if you were in the pro-selling group, you’d have to persuade the one person who has no interest in moving under any circumstances, regardless of the deal offered.
There are probably exceptional circumstances – such as the building has become unviable or uninhabitable – under which you could take legal action to force the hold-outs’ hands. But that doesn’t seem like the situation here.
Apart from all that, any offers have to be worth the current owners while. You’d be looking at not just a premium price, but one that made it worth all the hassle, plus the opportunity to buy somewhere better than where you are currently living, so I’d say one-and-a half to two times current values would be your starting point.
I wouldn’t even worry about commissions and who is in cahoots with whom. It all comes down to the bottom line of how much the developer is going to make and how much they are going to pay owners to get them to sell the whole block.
One question would be, how much would it cost for you to buy a unit in the new block.
One thing for sure, if you move forward with this but don’t act as a group, you will get screwed.
And, as I said, unless the hold-out yields or the law changes, nothing will happen anyway.
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Just a few technical points. In NSW the strata committee has to be elected every year at the AGM. Ths committee then elects that office-bearers (if any). That means that unless you have had a proper election at a proper AGM in the interim, rather than having the same office-bearers and committee, you have none.
I would say that alone suggests that your committee is in disarray and the one person who should be fixing this – the strata manager – is doing nothing.
If I were in your shoes I would gather up all the complaints about everything, call an informal meeting of owners and propose that you be Chairman and secretary until such times as everything is on an even keel. After that, it’s up to you how much or how little you do – considering that nothing has been happening for years, the bar isn’t set terribly high (you just have to resist the temptation to fix everything all at once).
As chair, you don’t have executive or presidential powers … all you can do is chair meetings … but you will become a figure-head for the building and at some point a focus of discontent. But it’s worth the effort because just by making your scheme run as it’s supposed to, you are enhancing the value of your property.
Doubling up as secretary means you can see everything that’s going on and actually get things done. And if you were looking for help to get this all rolling, our sponsors Strata Answers are fantastic.
Oh, and the book is out of print (and out of date) and the publishers rejected a proposal for a new one because “you can get it all on the internet”. Ironic, or what?
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If no one else is doing the job, get yourself elected chair and/or secretary (a simple vote at your next committee meeting) then the dog can start wagging the tail, rather than the other way round.
Even if powers have been delegated, they can be resumed by an elected office-bearer whenever they want.
But talk to your fellow committee members first about the money being wasted on this do-nothing SM to make sure they are onside before you put it on the agenda.
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I’m going to take a hard-line view on this but it may help you in the end.
By allowing some owners to park in visitor spaces, you are taking away common property and giving it to them. That ois of considerable value and those that don’t benefit are therefore being defrauded.
Also, when your plan was drawn up, the shire decided the community required a certain number of car spaces. Has that need changed in any significant way?
But let’s just assume that the shire says OK; you are legally obliged to find a way of compensating members of the strata scheme who don’t get any benefit from this.
The easiest way to do that is to RENT the car spaces to the owners who want them and let the money go into the strata scheme’s funds. That way everyone can benefit, the multi-car families can park their vehicles and the owners corporation doesn’t lose a valuable asset that it may require in the future.
Take that plan to the Shire and they might be more amenable, as will the nay-sayers when they realise their levies (fees) could be reduced accordingly.
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So what? Why would you assume the proper procedures hadn’t been followed at an earlier date? You said yourself that a form had gone out. Arguing for its own sake, and finding every possible complication in otherwise simple matters, is not what this Forum is about.
Enough!
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I assume you mean the Act (Strata Schemes Management Act) and not the ACT.
I know of only a couple of instances where this has occurred in Sydney and that has been because of rogue parking on common property access roads that was potentially going to block access by emergency vehicles.
Councils will not manage parking in covered parking areas because of safety concerns and are reluctant to go into other schemes because of the cost-benefit issues. The occasional rogue parker in a strata scheme, plus the hassle of ticketing every breach – such as people parking slightly over their lines, which they are obliged to do – means it’s not worth their time and energy.
If anyone knows of a scheme where this is working effectively, please let us know. But to be honest, smart and diligent use of exisiting laws and by-laws mean this can all be better handled in-house.
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In short, the meeting can go ahead with those in attendance forming the quorum.
And it is only a 75 percent vote (as calculated by unit entitlements) of those in attendance in person or by proxy that is required to pass a special resolution (in NSW).
For instance, if you have a general meeting in a block of 100 owners and only 10 turn up but eight of them vote in favour of the special resolution, then it has passed (provided the votes for are more than 75 percent of the unit entitlements of those voting).
That’s one of the reasons that special resolutions requiring a 75 per cent of the vote must be clearly identified as such on the agenda.
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Have a look at this Qld Government fact sheet which covers the hiring and firing of body corproate managers.
There is absolutely nothing wrong with your committee having preliminary meetings with alternative managers, however, a general meeting will be required to vote on the appointment of a new one.
The committee does not have the power to engage a body corporate manager.
The body corporate must pass a motion at a general meeting by ordinary resolution to engage a body corporate manager under a contract. The terms of the contract must be included in the documents sent to members of the body corporate before the general meeting takes place.
The written engagement must list:
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all of the duties the manager is authorised to carry out
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the length of the engagement—between 1 and 3 years
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the payment arrangements.
Also, unless the current contracts have expired, sacking the current manager may be more of a problem:
How to terminate a body corporate manager
A manager’s engagement can be ended if they:
- agree
- are convicted of an offence involving dishonesty, fraud or assault
- fail to perform their duties, or comply with the Act or code of conduct.
Failing to perform or comply
To end a manager’s engagement for failing to perform duties, comply with the Act or code of conduct, the body corporate must issue a remedial action notice. This decision can be made by the committee of the body corporate.
The remedial action notice must state:
- the duties the manager has not performed or the details of claimed breach of the code of conduct
- a notice period (no less than 14 days) during which the manager must fix the issue
- that if the manager does not comply with the notice within the notice period the body corporate can end their engagement.
If the manager does not comply with the notice within the period, the body corporate can terminate the manager’s engagement by ordinary resolution at a general meeting.
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I don’t know if anyone has ever examined this in any great detail. There’s a massive flaw in electronic meetings, in that ordinary owners obviously can’t “attend” yet the law says they should be allowed to attend strata committee meetings. I assume (danger, danger!) that there could be retrospectivity in this, in so far as decisions taken at a virtual meeting of the committee where only two members voted (suggesting a lack of quorum) could be challenged at Fair Trading and/or NCAT.
This is something that could and should be sorted out in the regulations.
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