[Jimmy-T]

The Legge case was in 2013.  The Australian Privacy Principles were updated in 2014.

Privacy Principal 6 (below) applies most directly and it basically says that when information was provided (e.g. email addresses) for a principle purpose, it may not be revealed for use in a secondary purpose without the permission of the individual concerned or “the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order.”

Now, I am in favour of email addresses being made available to all owners.

However, I can understand the argument of strata managers etc who might say that the principal purpose for gathering email addresses is the distribution of official owners corp documents, however communications between strata owners is a secondary purpose and therefore covered by privacy laws requiring the consent of the individual owners concerned.

I’m not saying that this point of view is incontrovertibly correct – I would just like to see a tribunal or court ruling before I went against the prevailing opinion in the strata industry.

In the Legge case, the CTTT Member ruled that the privacy laws did not supersede the strata Act because they specified that restrictions did not apply to information required by law (such as owners postal addresses). Email addresses were not even mentioned.

If there has been a similar NCAT ruling on email addresses, I haven’t seen it, and I can understand why strata managers are reluctant to reveal email addresses.  Email addresses are much more powerful means of direct communication than postal addresses and it may well be that the Tribunal would treat them differently if called upon to adjudicate.

NB:  In the section from the Australian Privacy Principles below, an “APP Entity” means the organisation in question, in our case, an owners corporation.

6   Australian Privacy Principle 6 — use or disclosure of personal information

Use or disclosure

6.1 If an APP entity [like an owners coporation] holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) unless:

1. the individual has consented to the use or disclosure of the information; or
2. subclause 6.2 or 6.3 applies in relation to the use or disclosure of the information.

6.2 This subclause applies in relation to the use or disclosure of personal information about an individual if:

1. the individual would reasonably expect the APP entity to use or disclose the information for the secondary purpose and the secondary purpose is:
   1. if the information is sensitive information — directly related to the primary purpose; or
   2. if the information is not sensitive information — related to the primary purpose; or
2. the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order; or
3. a permitted general situation exists in relation to the use or disclosure of the information by the APP entity; or
4. the APP entity is an organisation and a permitted health situation exists in relation to the use or disclosure of the information by the entity; or
5. the APP entity reasonably believes that the use or disclosure of the information is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body.

Note: For permitted general situation, see section 16A. For permitted health situation, see section 16B.

6.3This subclause applies in relation to the disclosure of personal information about an individual by an APP entity that is an agency if:

1. the agency is not an enforcement body; and
2. the information is biometric information or biometric templates; and
3. the recipient of the information is an enforcement body; and
4. the disclosure is conducted in accordance with the guidelines made by the Commissioner for the purposes of this paragraph.

6.4 If:

1. the APP entity is an organisation; and
2. subsection 16B(2) applied in relation to the collection of the personal information by the entity;

the entity must take such steps as are reasonable in the circumstances to ensure that the information is de-identified before the entity discloses it in accordance with subclause 6.1 or 6.2.

Written note of use or disclosure

6.5 If an APP entity uses or discloses personal information in accordance with paragraph 6.2(e), the entity must make a written note of the use or disclosure.

Related bodies corporate

6.6If:

1. an APP entity is a body corporate; and
2. the entity collects personal information from a related body corporate;

this principle applies as if the entity’s primary purpose for the collection of the information were the primary purpose for which the related body corporate collected the information.

Exceptions

6.7 This principle does not apply to the use or disclosure by an organisation of:

1. personal information for the purpose of direct marketing; or

2. government related identifiers.

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[Jimmy-T]

Basically you only have to get approval from the committee (representing the owners corp) which may not be unreasonbly refused, unless the work involves structural changes.

I would be tempted to send a email to the secretary and strata manager, explaining what you intend to do and  how this complies with the Act, adding that if you haven’t heard within 14 days you will assume approval has been given and you will proceed as outlined.

This is not strictly legal but it will move things along and might even prompt the required strata committee meeting to be held.  If they drag their feet, it might be interesting to check the records for the permission the other owners got (or didn’t) for their air-con.

Section 110 of the Act says this:

110   Minor renovations by owners

(1)  The owner of a lot in a strata scheme may carry out work for the purposes of minor renovations to common property in connection with the owner’s lot with the approval of the owners corporation given by resolution at a general meeting. A special resolution authorising the work is not required.

(2)  The approval may be subject to reasonable conditions imposed by the owners corporation and cannot be unreasonably withheld by the owners corporation.

Section 28 of the regulations says this:

28   Minor renovations by owners

Work for the following purposes is prescribed as minor renovations for the purposes of section 110 (3) of the Act:

(d)  installing a reverse cycle split system air conditioner,

Note.  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.

Section 110 of the Act also says:

(4)  Before obtaining the approval of the owners corporation, an owner of a lot must give written notice of proposed minor renovations to the owners corporation, including the following—

(a)  details of the work, including copies of any plans,

(b)  duration and times of the work,

(c)  details of the persons carrying out the work, including qualifications to carry out the work,

(d)  arrangements to manage any resulting rubbish or debris.

(5)  An owner of a lot must ensure that—

(a)  any damage caused to any part of the common property by the carrying out of minor renovations by or on behalf of the owner is repaired, and

(b)  the minor renovations and any repairs are carried out in a competent and proper manner.

(6)  The by-laws of a strata scheme may provide for the following—

(a)  additional work that is to be a minor renovation for the purposes of this section,

(b)  permitting the owners corporation to delegate its functions under this section to the strata committee.

(7)  This section does not apply to the following work—

(a)  work that consists of cosmetic work for the purposes of section 109,

(b)  work involving structural changes,

(c)  work that changes the external appearance of a lot, including the installation of an external access ramp,

(d)  work involving waterproofing,

(e)  work for which consent or another approval is required under any other Act,

(f)  work that is authorised by a by-law made under this Part or a common property rights by-law,

(g)  any other work prescribed by the regulations for the purposes of this subsection.

(8)  Section 108 does not apply to minor renovations carried out in accordance with this section.

Note:  Section 132 enables rectification orders to be made against owners of lots for damage caused by work done by owners.

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[Jimmy-T]

OK, so show me one instance where an owners corp or strata manager has been ordered to reveal the email addresses of owners to another owner, and that has established a precedent.

Just one …

This is such a significant interpretation of the Act that if it occurred it would have been recorded.

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[Jimmy-T]

Yes, provided they are nominated in writing by the partner and the committee agrees (by vote) to allow this.

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[Jimmy-T]

And just to complicate matters further, the substitute’s presence can’t be counted towards the quorum as they haven’t become part of the committee until the committee has vote to acept them.

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[Jimmy-T]

OK, let’s get this out of the way – it seems I’ve been wrong TWICE – which makes it more or less right.

Kaindub said:

If the OC is sending notices to the email address and he email address is not on the strata roll, then they breach 178(b)  as the email address is not the address for service of notices. Irrespective of the above statement, 178(c) says the email address must be recorded on the strata roll if the owner has one.

What the Act says is that the lot owner must provide “an Australian postal address, and an email address if the holder has one, if not provided as the address for service.”

This is interpreted as meaning that you have to provide a postal address and/or email address if you haven’t provided a different address for service of communications (for instance, through an agent).  The Fair Trading website doesn’t spell this out and unhelfully refers to “postal/email addresses”.

However, here is an extract from a  Strata Community Australia (the strata managers’ professional body) FAQ:

How do I obtain the phone number/email address/postal address of members of the committee?

Due to privacy laws you only have the legal right to obtain the postal address of lot owners, which you can request from the strata manager, or if the scheme is self-managed, the committee … Records of the committee (which include the postal addresses of lot owners) must be made available for inspection by lot owners.

Now, given that the Act says that strata laws are superseded by all other laws and (I think) privacy is a Federal law, it may well be that what appears to be allowed in strata law, is forbidden in privacy laws.

So I may well  have been wrong when I wrote that email addresses weren’t required to be on the strata roll (although it may be that rental agents’ email addresses suffice), but then I was doubly wrong when I said that anything on the strata roll had to be made available to owners.

Do two wrongs make me right?  Kind of … but trying to track down the one line of legislation, regulation or tribunal findings that definitively says OCs must not reveal email adresses to owners has proved beyond me, thus far.

However, I did happen upon this web page from the Rockend strata management software website where it shows you how to hide the email addresses on your electronic strata roll.  It doesn’t mean it’s legal, but it does suggest it’s not illegal.

Why would email addresses specifically be excluded from the strata roll?  Anyone who has ever suffered from spam email clogging up their inbox will testify that it is a modern plague, partly because it costs nothing to send out a million emails – something that will cost serious money using snail mail.

There are also some seriously nasty con artists out there who will, for instance, send you convincing looking emails from your bank or internet service provider asking you to “confirm your details” – or, basically, hand over your credit card numbers, with obvious devastating sonsequences on your finances.

So you can see why privacy issues would be tighter for email addresses on strata rolls.  Letting randoms know that you a) own an apartment and b) have an email address is an invitation for all sorts of internet jiggerypokery.

But what if you want to get in touch with other owners (probably for reasons that your committee  or strata managers really don’t want you to)?

What is missing from this is a link where you can send an email to a “blind” address that passes on your emails to all owners, so that you can tell them that you think there’s a problem with your committee, strata manager, building manager or whatever. That would get round the problem – but don’t expect it to happen any time soon.

In the meantime, we just have to be thankful for the strata managers, building managers and secretaries who click on cc rather than bcc when they send out group emails.

 

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[Jimmy-T]

I have left this post as it arrived to let everyone see the amount of coding crap that I am expected to clean up when Flatchatters copy and paste from other sources, using (I think) Apple-based software.

I have asked repeatedly for posters to clean up their posts or copy and paste from txt or rtf files – it’s really easy if you just make a small effort – before posting here.

No one can help if they can’t read your posts and I’m not going to spend hours cleaning up after you.

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[Jimmy-T]

No need to apologise  … because what you are trying to say is not correct.

Email addresses may be revealed in the records of correspondence but that doesn’t mean they are on the strata roll.

So, yes, you can find the email addresses of some owners by a diligent search of correspondence, if they happen to have communicated with the OC by email and have not been redacted, but you are likely to be rejected if you ask for a list of all email addresses. This is on the grounds that they are not required for the strata roll by the Act and therefore are not part of the strata record.

There’s a difference.  I don’t like it but it is the norm.

Show me a case  that proves otherwise and I will issue a correction.

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[Jimmy-T]

First, go to tenants.org.au and look at the stack of fact sheets on rentals that they have there.

Yes, it is unreaonable for her to give you 12 hours notice when she herself couldn’t cope with two weeks’ warning.

And the fact that she has been in the flat alone before your inspection would diminish (but I don’t think totally negate) any claims she might have against the bond.

But this sounds to me like a landlord who doesn’t like being told what her options are by a mere tenant so what she is doing is wresting back control.  The proof of the pudding will be when you get your bond back or she disputes it.

On the question of organising the inspection, Section 29.4 of the Residential Tenancies Act (below) merely states that a mutual inspection time should be organised “as soon as reasonably practicable”.  Subsection 5 says that it’s not a breach of (4) if the inspection is carried out without the other party present provided they have been given a “reasonable opportunity” to attend.

Should this go to Fair Trading in a dispute over the bond, it will be a determination of what was “reasonable” rather than an arbitrary number of days that will figure most significantly.

SECTION 29
(4) At, or as soon as reasonably practicable after, the termination of a residential tenancy agreement, the landlord or landlord‘s agent and the tenant must complete the copy of the condition report retained by the landlord or the tenant under this section, in the presence of the other party.

(5) It is not a breach of subsection (4) for the condition report to be completed in the absence of the other party if the party completing the report has given the other party a reasonable opportunity to be present when it is completed.

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[Jimmy-T]

Colonel Schultz said:

As an owner to get the strata role you need to do an inspection of the records at the strata managers office by giving notice and paying a fee as per s.182.

Just be aware that email addresses are not required to be part of the strata roll so most strata managers will not pass on email addresses for alleged “privacy” reasons.

If you are planning to use access to the strata roll to contact other owners, it would be by snail mail or telephone.

 

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[Jimmy-T]

Years ago someone in my block bought an unused common property plant room that was only acessible from their lot – and was therefore of little use to anyone else – and turned it into a wine cellar.

If I were you, I would get two or three local real estate agents to tell you what they thought it was worth to the owners corp as is, and what value it would add to your property and pitch the purchase offer somewhere between the averages of the two.

Remeber, sale of common property requires a special resolution – 75 percent of people voting at a meeting – so you have to convince owners who are actively engaged (or they wouldn’t be at the meeting). And you may have to pay for the general meeting if there isn’t an AGM scheduled for any time soon.

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[Jimmy-T]

Yes, the doors are probably your responsibility but even so you should inform the committee and/or the strata manager of your plans.  Their one valid objection might be that your doors would change the external appearance of the block.  I stress “valid”, because strata being strata, people will pull nonsense laws out of their backsides just to stop people doing what they want.  But be open and upfront, and listen to any concerns and you should be fine.

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[Jimmy-T]

I think perhaps the strata manager has been dividing all issues between the “too-hard” and “she’ll be right” baskets, rather than conspiring to do something wrong, for whatever reason.

Or maybe they are trying to do the right thing but really need to go back to strata manager school and could meanwhile do with a gee-up about their lack of effort.

Firstly, the strata manager can issue the NTCs him or herself if they believe a by-law has been breached – they don’t need to wait for a committee decision.  Even so, that committee decision could be to send NTCs “to all residents believed to be parking illegally.”

Secondly, the NTCs should be issued to the miscreant – in this case, the tenants – not the landlords.

And finally, as you point out, undr section 258 of the Act, if the name of the tenant hasn’t been registered with the strata manager, that is an offence and is, in fact, one of the few that comes with a fine attached ($550), under law.

Whatever the motivations, your strata manager has allowed the scheme to descend into dissent and chaos. Tell them to get on with doing their job, and stop making excuses, would be my plan.

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[Jimmy-T]

I’m not sure what it is that you want to achieve as you suggest that the committee will rectify the problem at the next AGM.

If it’s just a matter of holding the committee members accountable, and allowing owners to understand what has occurred, perhaps a motion to the AGM calling on the owners corproation to censure the committee members, with an explanatory note attached outlining the issues concerned, would be enough.

Obviously, the committee may try to block this but, as politicians all over the world discover on a daily basis, it’s not the crime that gets you, it’s the cover-up.

Regarding having withdrawn the complaint at mediation, you can still proceed with action at NCAT simply by saying that the conditions of your withdrawal have nor been met.  Or you can go again, saying you were misled and the problem has not been resolved.

But, without knowing all the details, I think that presenting a censure motion to the AGM, and having the same committee members vote it down or block it, may be the only trigger you need to reopen the case.

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[Jimmy-T]

OK, for a start, I assume they didn’t vote on the motion to remove them as strata manager as this would have been in breach of Schedule 1, Part 4, Sections  25 (7) and 25 (8) of of the Act (see below).

Even if they didn’t, this is such a blatant attempt to subvert the intention of the Act, I would immediately

a) make a complaint to Fair Trading – you can do so online HERE.

b) apply to NCAT to have the meeting’s decisons revoked and a new meeting called under  and

c) apply to NCAT to have the strata manager removed as soon as a replacement can be found.

And Item (c) would answer your question on how to prevent this from happening again. I’m sure the strata manager will have all sorts of dubious legal arguments about how this is OK – but regardless, it’s a rort, plain and simple, and you and the other owners don’t want anyone like that anywhere near the management of your building.

 

Schedule 1, Part 4, Section 25: Rights of proxies and limits on votes by proxies

(7)  Limits on exercise of proxy by building manager, on-site residential property manager or strata managing agent

A vote by a proxy who is a building manager, an on-site residential property manager or a strata managing agent is invalid if it would obtain or assist in obtaining a pecuniary interest for, or confer or assist in conferring any other material benefit on, the proxy.

(8)  For the purposes of subclause (7), material benefit includes, but is not limited to, the following—

(a)  an extension of the term or an additional term of appointment of the proxy as building manager, on-site residential property manager or strata managing agent,

(b)  an increase in the remuneration of the proxy,

(c)  a decision of the owners corporation not to proceed with, to withdraw, to delay, to compromise or to settle litigation or other legal proceedings relating to the proxy,

(d)  any other decision of the owners corporation that affects litigation or other legal proceedings relating to the proxy.

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