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Strictly speaking, the owners corp can demand access through lot property for repair and maintenance – but if the lot owner is resistant, this would have to be enforced through NCAT orders and could therefor be delayed.
This happened in our building when the developers failed to provide aerial access for windows and painting and the penthouse owners had to be asked to allow workers to set up pulleys and cranes periodically (and patience was bound to wear thin after a while).
My suggestion of a rail around the outside of the top level, which could be access by abseilers from common property, was ridiculed and we then embarked on a madcap million-dollar scheme to put a rail track on the roof with an electric crane on it, which would have required the evacuation of the top three floors while necessary strengthening work was done.
When that scheme was thankfully abandoned (the engineer had a nervous breakdown – honest!) some genius on our committee (of which I am not a member) came up with the idea of a rail around the outside of the top level, which could be accessed by abseilers from common property.
Sound familiar? It’s there now and works fine and that’s what you should take to your committee as an alternative to the legal action that they will require to force you to allow tradies to clamber over your pot plants.
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Not sure about neighbourhood associations but there is a requirement to distribute minutes to all committee members, plus all owners in a scheme of less than 100 units, or on request by owners in larger schemes. I’m sure that if you were in a scheme of more that 100 units, you could send a letter asking the secretary and/or strata manager to send you the minute of every meeting henceforward.
Schedule 2, Item 17 (3) of the Acts says:
Distribution of minutes and records of motions
Within 7 days after a meeting of a strata committee or the passing of a resolution by the strata committee, the strata committee must provide copies of the minutes of the meeting or of the resolution in the following manner:
(a) by giving each member of the strata committee a copy,
(b) by giving each owner a copy, if the strata scheme is not a large strata scheme (less that 100 units),
(c) by giving an owner a copy, if the strata scheme is a large strata scheme and the owner requests a copy within the period of 7 days.
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This would need to be fixed to common property and would affect the outward appearance of the building so the chances are you would need a special resolution by-law to be passed at a general meeting. In it you’d be expected to agree to the repair and maintenance of the door (which would then pass to successive owners of the unit). Talk to your strata manager or committee secretary.
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Costa wrote:
From memory, Sir Humphrey is in the ACT, yes? In saying ‘managing agent’ does Sir Humphrey mean ‘strata manager’?
The official terminology in NSW is “Strata Managing Agent” which is used throughout the strata Act. Strata Manager is just a local convention, albeit widely used.
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Regarding the AGM, the circumstances under which you might call a general meeting (Section 19 of the Act) specifically exclude AGMs so you will have no joy there.
Regarding question 2, Section 85 (4) of the Act says this:
(4) Regular periodic contributions to the administrative fund and capital works fund of an owners corporation are taken to have been duly levied on an owner of a lot even though notice levying the contributions was not given to the owner.
I know that doesn’t cover the specific circumstances you describe but, to me (a non-lawyer), that would indicate that owners should keep paying their levies as they have in the past until a new budget is set.
Frankly, I would be taking steps – along with other owners – to seek orders at NCAT to compel the strata manager and strata committee to hold an AGM, at which I would make sure I had enough votes to sack the strata manager and the committee.
Or you could seek orders under Section 238, to sack the committee, then start procedings to sack the strata manager for a breach of Section 57 (1) by committing an offence under the terms of the Act.
Or, you could seek the compulsory appointment of the strata manager which, as we have often said here, is one of those “be carful what you wish for” moves.
My preference would be to scare the ditherers among you neighbours with the spectre of a compulsory appointment to get them to back you in moving against the committee and strata manager.
First things first, hold your own meeting, make your plans and get your numbers, then move decisively.
And then seek proper legal advice from an experienced strata lawyer.
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Firstly, it would probably help if you identified your part in all this, but I’m going to go ahead and assume you are the tenant or representing them in some way.
Your statement that this is not causing any disturbance to other residents is based on what? Have you taken a survey or are you just making an assumption. “Causing a disturbance” could include setting a precedent that other residents are anxious to avoid.
To answer your numbered questions in order:
- Is this (a fine of $1500) likely or are there more serious consequences? The fine is unlikely to be any higher that $550 but then it could be imposed multiple times, with increased penalties for ignoring NCAT orders.
- If the issue does progress to NCAT, do you think there is a good chance that NCAT will rule in favour of the Strata Scheme? To be honest, NCAT is a crapshoot and it could go either way, but if the owner’s corporation uses the precedent of decisions by the highest court in WA and the Privy Council (Law Lords) in London, rather than an NCAT decision in Woolhara, the tenant will lose.
- Have you heard of this [non Bed & Breakfast] argument being used? Nope, but in any case all over NSW councils are ignoring their own Development Approvals which clearly state that apartments must not be used for holiday letting, which they define as no less than three months.
Personally, I don’t have a huge problem with genuine “sharing” – i.e. letting a room while the resident is there. But that’s just me.
However, let’s assume this tenant and his landlord-in-law tough it out, go to NCAT and some old anti-strata duffer decides that your, sorry, the tenant’s dubious “rights” take precedence over the wishes of the majority of owners.
Congratulations. You win and you can rent out that spare room to Swedish Backpackers to your heart’s content.
However, pretty soon you’ll find your pass key intermittently stops working, tradies trucks seem to be always parked in your space, some vandal has superglued a matchstick in your doorlock, your internet keeps going off, the woman upstairs is taking Flamenco lessons at 6 in the morning (but, mysteriously, no one else in the building can hear her), all your mail is return to the post office marked “gone to Ibiza, return to sender”, and, when the owner wants to get the smallest bit of maintenance done to their flat, it will take months to get it approved, if it ever is.
What I’m saying is, the landlord knew what the by-laws said and has decided to say “stuff you” to the majority of owners in the building.
So by all means, get all bush lawyer about it, and spend money on real lawyers who will happily take this to NCAT and have at least an even chance of winning.
But don’t be surprised if the majority of owners say “stuff you” right back and make your lives a misery by all sorts of creative and untraceable means.
But maybe that’s just me.
Finally, vastly superior courts to NCAT have found that, where local planning laws don’t allow holiday letting, Section 139 (2) doesn’t apply since the owner never had the right to offer holiday lets in the first place, therefore nothing is actually being prohibited or restricted because that right did not exist.
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And if the owner fails to comply, you can seek fines of up to $550 for failure to notify the owners corp (strata committee) of changes of lease or sub-lease. By the way, even a verbal agreement that someone can stay in a property is effectively a lease under the Residential Tenancies Act.
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Yes, this sounds like a “small war, not many dead” situation. If you can get a committee decision (from a ringaround, perhaps) that the kettle and fridge will stay and the owners corp will pay for the electricity, at least the grumbler will have someone to grumble to.
But, honestly, some people just aren’t happy until they have something to complain about. Just wait till the deep-fat fryer, microwave, rice cooker and George Foreman grill turn up.
But seriously, a good compromise would be to get the committe to agree on what is allowed and what isn’t (see above list of appliances).
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I’m not even sure if it can be done as you are part of a community scheme. And even if it can, it would require a unanimous vote. Have a look at this factsheet from the registrar general’s office.
I think you might be better to look at the root causes of the dissent and even consider employing someone like our sponsors Strata Answers to come in and advise how to make the current system work better, rather that trying to pull it apart.
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No. It means your responsibilty as a lot owner extends 3 metres above and below the floor of the courtyard (assuming the courtyard is lot property and not common property)
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It certainly is an issue. A resident has just awarded themselves a very nice chunk of real estate at everyone else’s expense.
I would start with a polite note sayng that this is for bona fide visitors only and is not a spare space for residents to use as they see fit. Residents’ parking there do so in breach of by-laws and could lead to a fine and/or the vehicle being towed at the owner’s expense. Suggest that they put a notice on your noticeboard asking to rent a spare space from another owner.
If that doesn’t work, get the strata manager or committee to issue a Notice To Comply, which is basically an official warning that carries the very real threat of fines.
Alternatively, the committee could go straight to our handy “move it or lose it” poster, which you can download from HERE
Or read some of the other methods used to deter parking ‘thieves’ right here in the forum
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Just had a call from the Minister’s office, thanking me for my “good catch.”
The proxy form is wrong when it says:
This form is current from the day on which it is signed until the end of the period (if any) specified on the form or the first anniversary of that day or at the end of the second annual general meeting held after that day (whichever occurs first).
The words in brackets should read “whichever comes later”, or words to that effect.
Also, the proxies are not restricted to the two AGMs mentioned and are effective for all the meetings in between.
Done and dusted.
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