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Just for clarity, this is what section 57 of the Act says about strata managers’ breaches. This kind of contradicts what I said in my initial response. Basically, if the OC tells the strata manager to do something illegal and they do it, the strata manager is culpable.
57 Breaches by strata managing agent
(1) If a strata managing agent has been delegated a function by an owners corporation and a breach of the duty by the owners corporation would constitute an offence under a provision of this Act, the agent is guilty of an offence under that provision (instead of the owners corporation) for any breach of the duty by the agent occurring while the delegation remains in force.
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I think strata managers would be well down the list for a Royal Commission, even in the strata industry, after developers, builders and certifiers.
What we really need is an investigation of how this whole industry has been allowed to evolve the way it has over the past quarter of a century, with politicians ranging from the blatantly corrupt to the incompetent and clearly unengaged.
The ridiculous situation whereby NCAT can issue orders but not penalise miscreants for ignoring them is indicative of the slapdash, who cares? attitudes successive governments have to strata.
Get strata out of Fair Trading and into either a Housing super-Ministry or into the Department of Justice (alongside NCAT, as they have in Queensland) and we can start making some real and effective changes.
And as for strata managers, maybe it’s time we had a Tripadvisor for them too (ain’t gonna happen).
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The law in NSW on committee members who become unfinancial is that they have to inform the committee in writing that they are unfinancial but the Act specifically excludes them from being removed from the committee (see below).
35 Vacation of office of elected member of strata committee
(1) An elected member of a strata committee vacates office as a member … if the person was eligible to be a member at the time of election and the person ceases to be so eligible (other than because the person is an unfinancial owner),
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More relevant than section 102 is
166 Strata managing agent to obtain insurance quotations
A strata managing agent must provide the owners corporation with not less than 3 quotations from different providers for each type of insurance proposed by the agent to the owners corporation or provide written reasons to the owners corporation if less than 3 quotations are provided.
Now, it could be that the SM has provided the quotes to the committee (who represent the OC) and they have decided on the best option, but they should at least be able to explain why they reached that decision.
So, rather than ambush them, tell them that you will be asking at the AGM what the other quotes were, who they were from and why they chose the one they did.
It’s a reasonable question and you and other owners are entitled to know the answers – in summary, at least. On the other hand, the AGM is not the right place to discuss the relative merits of different insurance policies in detail … unless you want it to drag on for hours as everyone gets an education on strata insurance and what it means.
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Stealing – another owner in our small block of 4 units has a cleaning lady who I saw stealing one of our outside pot plants. when my wife emailed the owner to complain, she was told that the cleaner was trustworthy and has worked with other members of her family without issues.
Well, I saw her putting the plant in her car & she (the thief) saw that I noticed her, so I am annoyed that my word about this is not believed or just ignored. She has our common keys & can no longer be trusted.
My wife is fond of her plants & her efforts to beautify our entry hall and paths. Nice big potplants sell for good money at Sunday markets; perhaps this is where the plant ended up.
What can I do? I don’t want the incident to just fade away.
How have others dealt with this situation? I would love to tell the cleaning lady to F off, but don’t want to overreact too much.
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To answer the question I think you were asking, you role as an strata committee member (it’s no longer called and executive committee) is to do as the owners want (as decided at an general meeting or through properly agendaed and minuted meetings and/or come up with your own proposals for the better management of your building.
A lot of what you are looking for is contained in the Fair Trading publication Strata Living which you can download from that link.
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I hope your legal insurance against defamation cases is up to par.
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Did you raise this with Fair Trading, who are supposed to supervise strata managers?
If the strata manager is acting on behalf of the strata schemes, their actions are taken to be actions of the strata scheme and it is they whom you should be pursuing.
If the strata manager is acting independently, then your complaints should be with Fair Trading.
By the way, I don’t see how the distressing picture of your mother’s injury (on the GoFundMe page) has anything to do with your issues with the strata manager. I reckon it will turn more people off than it will encourage to support you
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This post was all jumbled up. Is the above the question that you intended to ask?
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That’s an interesting question. Strata schemes have a legal obligation to fulfil their responsibilities and enact decisions made through the correct channels.
But that is a very flexible concept, taking into account the legalities of the original decision, the capacity for it to be overturned by subsequent votes and the oversight of NCAT.
In any case, rather than explore the legalities of this, it’s probably worth looking at the practicalities. If the compulsory strata manager (CSM) were obliged to follow through on decisions made before they took charge, who would enforce that?
Assuming that the CSM doesn’t think these decisions were a good idea, owners would have the option to pursue the case through a Section 232 (2) claim at NCAT for failure to exercise a function.
The CSM is going to go to the tribunal and say, hang on, this strata scheme was so dysfunctional that the Tribunal appointed me to take over, and I don’t think this is a good idea. The Tribunal member is likely to agree and use their discretionary power to revoke the decision in question.
End result, you have added extra charges to your strata management bill with nothing achieved, while probably making sure that the CSM is in place for at least another year because of the perception of continuing dysfunction of the strata scheme in not letting old issues lie.
Your best option is to convince the CSM that the decision was a good one and that they have the power to make it happen. If you can’t do that, you are probably wasting your time in pursuing this.
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It sounds like in this situation the best solution is one of those suggested by Sir H, and that’s a user-pays system of either separate power supplies or metered electrical connections.
Another way round this would be to clear out all the individually owned washing machines and dryers and replace them with cashless user-pays communal machines (click to see one comercial solution).
This is the problem when what was once a communal facility is gradually taken over by some individuals while being abandoned by others.
There will be resistance to change. Those who are effectively being subsidised by other owners won’t want to lose that benefit. Those who are self-sufficient with their laundry equipment inside their flats won’t want to pay more towards communal facilities.
Possibly the best thing you can do is to circulate a plan to all owners explaining what you want to do and why and what the options (and costs) are, including the added cost to laundry non-users of keeping things as they are.
At the very least, a separate meter for the laundry and agreement for those given access to the equipment that they will share the costs would be fair.
But having half a dozen separate dryers leaching off communal electricity makes no sense. A couple of shared Hills hoists would be a step “back to the future”.
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Just getting back to the general issue, and taking Sir H’s point of not causing problems where none really exist, most by-laws related to vistor parking come under a provision that you can’t do it without written permission.
So if you’re in a situation where there are plenty of spaces and residents want to use them, how about asking them to apply for permission and even charge a nominal rent (slightly less than the going rate for car spaces in the area) for doing so.
Then in the future, when the lack of visitor spaces becomes an issue, you can start pulling back on the permissions on a last-in, first out basis. These spaces are common property and they are an asset – use them wisely.
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Hmm, nice try by the majority of three but there is a concept in law called fraud against the minority (among other things) which basically says that a majority of people can’t agree to do something that would unfairly affect the minority of people, even though the processes they use appear to be legally sound.
Previous attempts to do this have resulted in a ruling that the owners benefitting from this kind of land grab have had to pay the other owners some sort of compensation.
I am not a lawyer, but if I were the fourth person, I would go to the meeting and tell the other three that I would expect to be compensated by one quarter of the total benefit they would receive from the increase in value in their properties, as estimated by an independent surveyor of my choosing.
It’s an ambit claim but it will get their attention.
Failure to agree on this would see action at Fair Trading, NCAT and the local council to prevent the illegal subdivision going ahead on the grounds that the by-law was discriminatory, the sub-division was not permitted by the DA and the aforementioned “fraud on the minority”.
Meanwhile, resident No4 should talk to an experienced strata lawyer ASAP.
To answer your questions:
1. … can they also insist, by way of their 75% majority, that legal costs such as bylaw preparation be paid for by the whole OC ( i.e. not just by the beneficial owners but including the sole person not benefiting from exclusive use)?
That’s not how it works. This plan is not for the benefit of the strata scheme as a whole and any attempt to do that could be seen as fraudulent.
2.What if any action can the sole remaining owner not benefiting from exclusive use take to ensure that:
a) he doesn’t have to pay legal or other costs associated with the proposal such as bylaw preparation
The fraud on the minority case I mentioned above found that the renovators could defer the cost of legals etc against the benefit accrued through the renovation. But the people benefitting from the by-law should pay the costs initially and it could, again, be seen as fraudulent if they try to shift them to the OC.
b) he is not responsible for ongoing maintenance of the fences
The Dividing Fences Act applies, which means the owners on either sides of the fences are responsible for their maintenance. The exceptions are where a fence divides lot property and common property (split between the OC and the lot owner) and between a lot and public land (OC, I think???)
c) that the proposed bylaw state that the 3 owners pay compensation to the OC for exclusive use (i.e. increased value of their lot minus cost)?
As explained above, this is pretty standard. Any attempt to not do this – or something like it – would leave them wide open to legal challenge and even greater legal costs which they could not defray. Talk to a strata lawyer.
3. Would the Dividing Fences Act be applicable? For example, the lot without exclusive use is an end lot and would have the neighbour’s courtyard fence on one side.
Yes, as explained above – so responsibility for its upkeep would fall jointly to the fenced-off lot owner and the OC, meaning the end owner would be paying, roughly, one-eighth of the cost of maintenance (a quarter of the OC’s half).
The owners planning this land-grab should bear in mind that the local council planning authorities made this area open for a reason and they may not want fences. Also, the end unit owner should be looking for a considerable adjustment in their levies, commensurate with the alteration in values.
So this should not be seen as a “given” – the renovating owners really need to get the end owner onside if they want to get this through smoothly. If they choose to blunder ahead and bully their way to a result, they could end up with no fences and substantial legal bills.
And, for the last time, the end owner needs to talk to an experienced strata lawyer or, at the very least, our sponsors at Strata Answers.
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I don’t know if there are any regulations or by-laws but there is common sense. Do you also pay their electricity and water bills?
If there is no by-law on your books saying that all owners will pay the costs of commercial enterprises, then you shouldn’t be paying these charges.
If there is a by-law – maybe sneaked on by the developer to make the sale of the premises more attractive – you should rescind it (by a 75 % vote at a general meeting) or go to NCAT to have it struck down.
On what grounds? That it’s a rort, plain and simple.
In fact, you should tell the strata manager to stop paying the bills and hit the commercial tenants or their landlords with backdated bills for previous payments. You can always step away from that as a bargaining tool.
And if the commercial tenants want the owners corp to continue paying the bills, let them take you to NCAT and see how they do there.
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Ziggy said:
What if the person parking illegally in a visitor’s spot is the partner of an SC member?
All the more reason for pursuing this. If the committee does nothing, you can seek mediation and then take them to NCAT under section 232 (2) of the Act – Failure to exercise a function (below).
There was a good reason that they changed the name of committees from ‘executive” to “strata” – some members thought that being on the committee entitled them to executive privileges. It doesn’t but it does come with the implied responsibility to set a good example to other owners.
Send them a letter asking that all illegal parking on common property be dealt with for everyone, including committee members, or you will raise the matter at NCAT. Then wait two months for them to either refuse or do nothing, then apply to Fair Trading for mediation.
Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if:
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.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.