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I think there’s a huge difference between saying “give me your vote and I’ll do the thinking for you” and a form that lists the motions want you tick boxes for Yes, No and Abstain. Better the devil you know is a principle that looms large in strata, that’s why incompetent and self-interested chairs are able to stay in power for so long.
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I thought owners had access to all common areas of a site, including the roof as need be, when having a reasonable reason to access them, with or without committee permission?
Not really. For instance, your scheme might not want all owners to have access to your electrical power board or communications room, at their own behest. However, there should be a good reason for refusing a reasonable request for access. Ask the committee again and request a reason for refusal in writing (should it be refused).
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I’m reading it that since the Regulations have taken up the option allowed in 28(3) and specified a way of voting for someone not present at the meeting then that is the way that must be used.
Indeed. And I would go further and say if the committee or OC HASN’T approved an alternative method of voting, then no other method of voting can be used.
In any case, here’s the critical issue – the Tribunal will not overturn a decision in which informal voting or discounted votes played a part unless it can be shown that those informal or discounted votes would have affected the outcome. That said, it’s worth clarifying the processes in your scheme, including having an approved non-attending, non-proxy voting paper, available for anyone who wants it.
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The initial question was how do you insure it. Firstly, there is no obligation on your part to insure lot property. If you are concerned about damage to common property from leaks from your roof, that may be covered by strata insurance in any case. The question remain, would the insurers come after you for the cost of the repairs? I think there are so many grey areas here that your real question is “do I choose to worry about this or not?”
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There is a deck. The deck itself looks like it is fairly new.
That might explain why the responsibility for the roof has devolved to the lot owner. It was probably a condition for the installation of the deck.
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… as this meeting has a time and place where people will attend, any sort of form can be used by someone who is not attending.
Schedule 1, S28 says strata schemes can decide on “another way” of voting and what that other way of voting should be.
In other words, the secretary can provide a voting form that has been agreed on by the committee and that vote would be allowed (provided everyone has access to it).
But an individual can’t invent their own form. The secretary only has to ensure that anyone who is entitled to vote can do so. They don’t have to accept hand-knitted forms from all and sundry.
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Also a special , or any other, resolution can be carried on a zhow of hands or majority of votes carries the motion. Only if a poll note is called [do] unit entitlements come into play
Are you sure.? Section 5(2) says this: In determining a special resolution, the value of a vote for a lot is equal to the unit entitlement of the lot …
Sounds like all special resolutions have to be decided by poll votes whether an owner calls for one or not.
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My advice would be to focus on one issue at a time. You may think your weight and spread of complaints adds to the strength of your case but it might only detract from and dissipate it. For instance, invoking S260 (personal liability) is a stretch. You really need to talk to an experienced strata lawyer, otherwise you risk having your case ripped apart at the Tribunal without the core issues even being discussed.
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If you read between the lines on the Bannerman report, the original plaintiff had set out to get a finding against both the strata committee and the upstairs neighbour but then abandoned the case against the strata scheme and concentrated on what the respondent HAD done and not on what the committee hadn’t.
It seems logical to me that if you forget the history and what the committee has or hasn’t done, and focus on the upstairs neighbour, you could then legitimately ask why the strata scheme is paying their legal costs. When you involve the strata committee you are opening the door for them to hire lawyers.
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Have a look at this, from Bannermans: https://diybylaws.com.au/noise-coming-from-above-tribunal-orders-lot-owners-to-remove-or-replace-flooring/
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NCAT made clear that if she wins we may have to pay costs.
On what basis? The Tribunal has a limited number of reasons under which it can award costs, but legal representation is one of them. My advice would be to sit down with an experienced strata lawyer and ask them what the chances of success would be. Either of the entities that sponsor Flat Chat would be a good choice. If they are conflicted out, Amanda Farmer prefers not to represent owners corporations or committees and instead take cases for owners.
If they say you have a better than 75 per cent chance of success, I would go for it. Less than that, you have to weigh the risk against the potential reward. I would start by questioning the basis under which the strata committee is bankrolling the tiler, especially when you look at Section 37 of the Act
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,
(c) to only use or disclose information obtained as a member, including information about an owner of a lot—
(i) as required to carry out strata committee functions, or
(ii) as authorised or required by law,
(d) to not behave in a way that unreasonably affects a person’s lawful use or enjoyment of a lot in the strata scheme or the common property.
I am not a lawyer, as you know, but I would think a committee member using strata scheme funds to permit a breach of the by-laws, or ignore other aspects of the Act, rides roughshod over Section 37 and other parts of strata law.Talk to a lawyer, assess the risk, make your decision on that basis. But a word of warning, make your pitch based on facts, not emotions. The latter will hinder rather than help your case.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 could not agree more. In fact, I would be telling the committee when the tradies were arriving to install the new doors and let them deal with that. But maybe that’s just me.
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