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Unless you have something in your contract or agreement with your strata manager sying they have to get committee approval before paying bills, there’s not much you can do … except ask them why they were so quick to pay.
How should the committee members who did not approve the invoice proceed – ask Strata Manager if someone on the committee instructed them to pay? Ask for evidence of any instruction?
That would be reasonable, but they might turn around and say there was no instruction NOT to pay, so they just did their job.
If there is evidence that a committee member provided such instruction, without a majority vote, what action can be taken? Can they be removed from the committee?
They can be voted out of an executive role if they have one by a simple majority vote on the committee. They can be voted off the committee (for a year) by a simple majority at a general meeting. And you can make a case against them being elected at your next AGM.
Can any action be taken against the Strata Manager?
For what? A tied committee vote means the status quo prevails. The SM could argue that the status quo is to pay bills. However, if you can find evidence of non-declared kickbacks and commissions, you can make a complaint to Fair Trading and, as well, get shot of the strata manager at the next opportunity, such as when their contract comes up for renewal.
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I am still quietly obsessing about my (merely brilliant) idea of a strata disputes panel. You get one strata lawyer, one strata manager and one former or long-standing committee member. The plaintiff states their case in 15 minutes, the respondent responds. The panel retires for 20 minutes to consider and returns with a verdict.
If they are unanimous, they tell the “loser” that they don’t have much chance of success at a Tribunal. If it’s a split verdict they explain why and suggest a compromise.
In the first scenario, the loser will be told that pursuing a ‘hopeless’ case means they could have costs awarded against them if they go to the Tribunal (something that the law already allows for). It’s a form of mediation with a resolution, rather than passively encouraging aggrieved owners to doggedly persist on a matter of principle.
Just think, strata disputes resolved in an hour, rather than after weeks and months of grief and grievance with little certainty of the outcome. But, of course, that would need Fair Trading and the Attorney-General’s office to meet in the middle and, as anyone who has ever watched Yes Minister or Utopia will know, that cannot ever happen.
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I have not been keeping up with the forum lately. Apologies if this has already been mentioned. Anyone, who can get to Strathfield, Sydney next week, should attend.
For some reason, Fair Trading didn’t pass this on to me. Maybe they don’t want Flatchatters turning up, asking informed questions and making relevant comments. Or perhaps it’s just another SNAFTU (‘sanother Fair Trading upstuff).
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This website is chockablock with questions and complaints from strata schemes that didn’t follow correct procedure when changes to common property were made without authority and they were left holding the baby when the renovator sold out and moved on, leaving some sort of DIY mess behind them.
The laws are there for a reason. The amended Act says this in section 37:
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,
Failure to pursue an obvious breach of by-laws and of the Act itself, looks like a breach of 1(a)ii and iii and 1(b). It would be interesting to see how the Tribunal viewed such laxity.
To put it another way, if committee members are too timid or lackadaisical to uphold their own bylaws and strata law, they shouldn’t really be on the committee in the first place.
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Escalating this to Fair Trading would tescalate this even further than you clearly want to go.
How about asking your secretary or strata manager, on the basis of no names, either of the copulators or yourself, to send out a reminder to all residents that offensive activity on common property is a breach of your by-laws and apartment balconies are common property.
If everyone gets the notice, then fingers need not be pointed. For your reference, the model by-law (which you probably have on your schemes’ books), is by-law 7.
7 Behaviour of owners, occupiers and invitees(1) An owner or occupier of a lot, or any invitee of an owner or occupier of a lot, when on common property must be adequately clothed and must not use language or behave in a manner likely to cause offence or embarrassment to the owner or occupier of another lot or to any person lawfully using common property.
(2) An owner or occupier of a lot must take all reasonable steps to ensure that invitees of the owner or occupier—
(a) do not behave in a manner likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or any person lawfully using common property, and
(b) without limiting paragraph (a), that invitees comply with clause (1).
Again, as I said, your balconies are common property in most buildings. Make it clear that you are not looking for any direct complaint or action to be taken – just to let the bonkers know they can be heard and that’s not how to behave in an apartment block.
Do it this way and the worst that can happen is that there will be a whispering campaign trying to establish who is doing what to whom, where and when. Oh, the scandal!
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Is it likely that premiums will go up should owners not be prohibited from this type of behaviour in the future?
Interesting thought but insurance premiums tend to go up after actual claims rather than in anticipation of possible problems (beyond what’s already insurable). For instance, I have yet to hear of premiums being raised because there might be electric scooters in a block.
On the other hand, if the scheme doesn’t resolve this, there may be occasion win the future where they have to make a claim – shoddy work leads to a disaster and a new owner of the property refuses to pay, for instance.
My rule of thumb would be if it needs to be done, get it done. Make it clear to the owner why they are in breach of the law and how fighting this in court, without a valid legal defence, could mean that they are up for all costs.
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So to your original question – there is no law that says you can’t contact the SM.
And there’s no law that says the strata manager has to read or reply to your messages. In fact, if your committee tells them they won’t pay for corresponding with you, there’s nothing much you can do except get rid of the committee at your next AGM.
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As long as you have a majority in favour on Tribunal action, then you can proceed. There aren’t many issues in strata that require unanimous approval, and this isn’t one of them.
In fact, if you don’t proceed, even if other committee members drop out, owners in your block could take the committee to NCAT for failure to fulfill its statutory duties (section 232[2]).
I realise that the “cost” of your time is referring to the effort you are making rather than a financial impost. However, just to clarify, the Tribunal will not compensate committee members for time spent pursuing a case. They will, however, allow for a claim for costs if you employ a lawyer but even then in limited circumstances.
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on new members – a former EC member resigned at the last AGM and was not replaced – do we have to wait until another AGM or ESM to vote more members on?
If the proper procedure was followed at the last AGM, the OC would have decided on the number of seats on the committee. The implication of a vote to decide the numbers required on a strata committee is that a vacancy should be filled as soon as reasonably possible and the committee has the power to do that by asking for volunteers and electing one of them.
Conversely, if there is a vacancy and an owner asks to fill it, then the committee should allow that person to join or present another candidate whom they can elect.
In my building, the chair asks people who are planning not to stand for re-election to resign before the AGM so that the chair and the other committee members can choose their replacement who will then stand a better chance of being re-elected at the next AGM than if it was an open vote. It’s called branch stacking in other areas of politics.
Regarding your definition of “quorum”, that is not the case. The way to avoid tied votes in NSW is to set an odd number of seats on the committee. As described above, a vote on the number of committee members is a legally required part of the election process at an AGM.
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It’s worth noting that, for the purposes of non-discrimination, the Ageing and Disability Commissioner Act groups people with age-related issues along with people with other disabilities.
It’s also significant that the SSMA section 5 states that changes to common property for accessibility require only a simple majority (not a super-majority as for a special resolution) while section 132C outlines the issues the scheme should consider including “the extent to which the use of the accessibility infrastructure will be available to all or some of the lots in the strata scheme” and “the extent to which not installing the accessibility infrastructure will cause or be likely to cause detriment to be suffered by … the person requesting the installation of the accessibility infrastructure.”
But there’s another potentially overriding consideration – Safework NSW says that stairs must have at least one handrail if they are narrow and one on each side if they are wider. It also defines stairs as having at least two risers. So it could be that the strata scheme doesn’t have a choice – if there are stairs, there should be a handrail.
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There are many areas in strata schemes that are common property but only limited access is allowed. Communications and electrical switch board cupboards being an obvious case. On the other hand, in some states, incl the balcony is common property but only the owners of the adjoining lot have access to it.
Why isn’t it lot property? Because balconies profoundly affect the look and even the physical integrity of the building and it’s easier to maintain them and set standards for their use if they are common property.
The lift lobbies in this building fall into that category, which is common property but which is normally only accessed by the adjoining lot owner and so it feels like lot property. But the lot owner does not have the right to forbid legitimate access by agents for the strata scheme or, indeed, do whatever they want on it.
This is why smoke drift has become an issue in a lot of buildings; the strata scheme has the right to create by-laws covering the use of common property and people affected by smoke drift get frustrated when their neighbours on the committee or at an AGM refuse to do anything about it.
So the person on the top floor who doesn’t want tradies traipsing through “their” lobby should be quietly reminded that it’s not theirs exclusively and in an extreme situation, they could be ordered to remove all their stuff and repair all the holes in the wall from their picture hooks.
However, the committee is not going to do that but maybe they will let them know when tradies require access and they can sit on a deckchair and watch them pass by, if they want. But if they do so stark naked and/or shouting abuse at the workers, they could get a notice to comply with the by-law that says you can’t behave offensively on common property.
Common property isn’t always just common property but common sense is always common sense.
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