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In NSW, strata managers can’t use proxies when voting on issues related to their contracts. And people who service the building professionally, like rental agents, can’t be elected to the committee (unless they are owners).
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I’m not sure of my ground here, so please bear with me, but I have a feeling there is a difference between debts that can be attached to levies and other debts.
The former could be attached to the levies if they were, for instance, part of a ruling from NCAT but the others feel like they may be a separate issue which would require a local small claims court action. Hopefully someone can clarify.
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Trevor wrote:
You seem to assume the front page of the Proxy Form in the Regulations can over-ride the Act.
Doubtful ?No, but I think the options offered in the form can often reveal the intent of the law. That said, I have contacted Fair Trading about the apparent discrepancy, and what they think the “two AGMs” rule means. All will be revealed later today (I hope).
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Notwithstanding all of the above from Sir Humphrey, and rather than opening yourself up to accusations of ambushing unfinancial owners at the AGM, why not tell the strata manager that you will expect to see an accurate account of which lots (rather than people) are up to date and which are behind in their levies.
The law in NSW relates to who was paid up when the agenda for the general meeting was issued and has or hasn’t paid the amount before the meeting. Most strata managers say the money has to be in the bank before the meeting starts, so cheques and even cash at the meeting are often not accepted.
Schedule 1.23
(8) Voting rights cannot be exercised if contributions not paid
A vote at a general meeting … does not count if the owner of the lot was an unfinancial owner at the date notice of the meeting was given and did not pay the amounts owing before the meeting.
Since the law on nominations relates to owners “entitled to vote” anyone who is unfinancial can’t self-nominate or nominate someone else (although they can be nominated).
You are entitled to know which lots are financial and which aren’t and it’s an essential part of financial reporting, especially if there is a chance that a poll vote might be called.
Self-certification is causing enough problems in strata without self-finiancial validation to be allowed to continue unchecked.
You might also look at other restrictions on nominations that are often ignored, such as co-owners not allowed to self-nominate and owners not permitted to nominate if they are standing for election themselves.
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No. I disagree. But I would like to know what the situation is that you are trying to address, as it would make it easier to answer your question.
The clause you quote makes it clear that the proxy can be valid for either a number of meetings, a period of time or both.
That means, depending on how it is filled in by the proxy donor, the proxy can be valid for 12 months OR to the end of a second AGM (whichever comes later) OR the number of meetings AND/OR the period defined in the form by the person providing the proxy, within those parameters.
The form, issued by Fair Trading (did you read it?) says:
Period or number of meetings for which appointment of proxy has effect for *1 meeting/* [BLANK SPACE] meetings/*1 month/* [BLANK SPACE] months/*12 months or 2 consecutive annual general meetings
*Tick or tick and complete whichever applies. (Note: The appointment cannot have effect for more than 12 months or 2 consecutive annual general meetings, whichever is the greater.)In short, the validity of the proxy is defined by the proxy donor, except where they don’t state limits on times and dates, when it defaults to to the 12 months or two meetings limits.
As also stated on the form, the proxy also covers adjournments of the same meeting.
However, confusingly, a note on the back of the form reads:
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).
That seems to contradict the clause in the Act that says whichever comes later, i.e. it would cover a second AGM which occurred , say 15 months after the last one.
And that’s a real possibility. Given that we are now required to have AGMs withing every financial year (rather than on the anniversary of the last) there could be a gap of as much as 23 months between AGMs.
I plan to raise that apparent contradiction with Fair Trading.
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In NSW the official proxy form (which must be used) says appointment is for “the purposes of meetings of the owners corporation (including adjournments of meetings).”
That would be all general meetings, Annual or Extraordinary, but lower down there is the qualification where the proxy donor can state the number of meetings or the period that they want covered.
Finally, there is Fair Trading’s own restrictions, which operate regardless of any stated preferences: “The appointment cannot have effect for more than 12 months or 2 consecutive annual general meetings, whichever is the greater.”
You can download a copy of the official form HERE.
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FYI, in NSW the unit has to have been sold, not just up for sale, and the contract of sale must include a vacant possession clause. This from the Tenants Union website:
The landlord can issue a 30-day notice of termination but only if both the following conditions are met:
- They have exchanged a contract for sale with a buyer, and;
- The contract requires them to give ‘vacant possession’ of the premises to the buyer.
See Factsheet 10: Landlord Ends Agreement.
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REA = real estate agent. For your tenants’ union, go to tenants.org.au and that will take you to your state’s TU website. There you will find all the information you need as well as emergency numbers to call .
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I have a feeling that under the Fences Act, the wall is jointly owned by the people on either side of it – but that might not apply here.
However, if the committee insists that the strata schemes owns the wall, then they have to fix it – that is their legal responsibility.
Now, if they still drag their feet even after they have been told this, point them in the direction of Section 232 of the Act which covers failure to fulfil responsibilities.
Then it’s down to whether or not they want to do it the easy way or the hard way – but they’ll have to fix it, either way
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I think the question of new residents for the same lease might be covered by the sub-lease conditions: “If a lot is subleased, the sub-lessor must give notice of the sublease, in accordance with this section, to the owners corporation not later than 14 days after the commencement of the sublease.”
However, given that some legislatures choose not to consider Airbnb lets as sub-leases, this would have to be tested at the Tribunal.
It is worth noting, on the other hand, that both NSW and Victoria recognise verbal (i.e. non-contract) rental agreements as falling under their residential tenancies laws.
This is one for the Tribunals, in the first instance, and the way to achieve that is to apply for the appropriate penalties and see what happens. The legal costs of defending that might be enough to deter the revolving door landlords anyway.
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Kenuppa, the problem with 2 is that they are constantly changing.
I would by-pass the rental agent altogether and get in touch with the owner. They probably don’t know that their flat has new tenants every couple of weeks.
Oh, and you could demand that the landlord be fined for not notifying the strata committee that there is a new occupant under section 258 (below). That carries a maximum penalty of $550. Do that every time the tenants change and they’ll soon get the message.
If the strata committee refuses to get involved, you can pursue them under section 232 (2) “Failure to exercise a function”.
Actually, all you have to do is apply for mediation and they will see that you are serious
258: Tenancy notice to be given to owners corporation of leases or subleases
(1) If a lot is leased, the lessor must give notice of the lease, in accordance with this section, to the owners corporation not later than 14 days after the commencement of the lease.
Maximum penalty: 5 penalty units.
(2) If a lot is subleased, the sub-lessor must give notice of the sublease, in accordance with this section, to the owners corporation not later than 14 days after the commencement of the sublease.
Maximum penalty: 5 penalty units.
(3) If a lease or sublease of a lot is assigned, the assignor must give notice of the assignment, in accordance with this section, to the owners corporation not later than 14 days after the execution of the assignment.
Maximum penalty: 5 penalty units.
(4) The notice must be in writing and specify:
(a) the name of the tenant and an address for service of the tenant, and
(b) the date of commencement or assignment of the lease or sublease, as the case requires, and
(c) the name of any agent acting for the owner in respect of the lease or sublease.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.
If you can prove that you are significantly sensitive to the perfumes from detergents and fabric softeners, you could raise a complaint under Section 153 (below).
To put the “nuisance” clause in context, if a neighbour had a cat that caused you have asthma attacks, you could take action to have it removed from the building, or at least from being anywhere near you. If the issue was cigarette smoke, you could stop people from smoking on their balconies.
It’s amazing how insenitive people are to perfume sensitivity. I was on a plane recently when a woman stood up and sprayed herself with some sort of scent that had people around her coughing and sneezing. On the other hand, I’ve heard some offices have “no scent” days to give workers a break from the over-abundance of scents, aftershaves and deodorants.
Anyway, your first challenge is to get some authoritative medical opinion that you suffer unreasonably from an allergy to artificial scents. Then you can ask your owners corp to tell the culprits to either stop drying their laundry on their balconies or use unscented laundry products (yes, they exist!). At least they’ll have a choice which is more than you have at the moment.
As for the allergy tests, I googled and got this clinic. All I know about them is that they have a website, so this is not so much a recommendation as a recognition that they exist. By the way the term “nuisance” as in Section 153, is a legal term with specific meanings, rather than something that’s a bit annoying.
153 Owners, occupiers and other persons not to create nuisance
(1) An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
(b) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
(c) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.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.
Patch said:
I think from the feedback that I have to … work in [the] background to also inform owners about whats going on. ( social media, email…etc ) .
Tread carefully here. Have a look at this story about a defamation case that cost a tenant $120,000. By all means ask questions and inform other owners. However accusing individuals or groups of people of acting improperly, for instance, in a way that could be seen as defamatory, could see you in a whole other brand of trouble that you don’t want or need.
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Bluey, although the resolution you quote is a standard one employed by most owners corporations, it is far from mandatory.
In your case it would be a matter of proposing an amendment that covers the kind of issues that concern you, particularly matters that you feel have not been properly discussed in the past and which should be excluded from delegated powers in the future.
However, the strata committee will argue with some validity that to hold a general meeting just so that issues can be aired more widely, will hinder the smooth running of the block.
It sounds like communication is the issue here, not decision-making. Perhaps you could propose a motion that the strata committee issue consult more widely, explaining the major decisions they will be considering and why they are making them, so that owners can attend the committee meetings (as they are entitled to do) and raise their concerns there.
A newsletter issued a couple of weeks before their meetings would open up better communication on a number of fronts – not just contentious issues – and would be of benefit to the community as a whole. But then you’d need to find someone prepared to write it.
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