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Why, indeed?
The statement isn’t entirely accurate in any case since all special resolutions are conducted as poll votes and so it would be 75 and 25 percent of unit entitlements held by those voting …
I suspect it’s worded that way, partly to help eliminate the abstention argument: If you are abstaining then you are not voting, and therefor your vote is not counted when calculating the percentages.
Even so, it might just be a way of emphasising the status quo, which remains if more than 25 percent vote “no”.
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Patch wrote:
I was interested in Section 24 of the Act you mentioned. How can an errant committee member/s be forced to pay for restoration of common property. Can Tribunal rule for that ?
OK, I should preface this by saying it’s not legal advice and for that you really should go to a strata lawyer.
That said, the Tribunal can rule that the expenditure wasn’t properly authorised so, logically, the person who signed the bills was acting independently.
Then it would be up to the Owners (as the owners corp) to seek to have that money paid back. So individual owners, or a group thereof, send a letter to the strata committee asking them to pursue debt recovery against the errant committee members for the strata funds they spent without proper authority.
Obviously, the strata committee probably isn’t going to take itself to court over this, so you then apply to NCAT to compel them to take action (Section 232). At this point, anticipate mass resignations and multiple sales of units as the culprits (and the passively complicit) try to distance themselves from potential liability.
Make sure you have a Strata Committee in Exile – and a good, reliable strata manager – ready to take the reins when it all starts to fall apart.
By the way, two trips to the Tribunal, plus appeals, plus debt recovery, is a long hard row to hoe – but maybe a determination to see this through will put enough of a scare into the committee members to get them to do the right thing – which is to made good their personal land grabs then resign from the committee.
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The phrase “you can’t fight City Hall” springs to mind.
That said, how about getting it fixed but at the same time documenting, with reports and pictures, what caused the problem. Then if it turns out you are demonstrably correct, send the council a bill with a demand that they pay within 14 days.
Might not work but could be fun.
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There are a number of ways you can approach this, assuming that you tell the strata committee to undo all their work and they refuse.
1. You can get support of one quarter of owners (by unit entitlement) to call an EGM where you can seek a simple majority to have all the “improvements” undone.
2. You could, at this EGM, seek to have any or all of the members of the committee removed by special resolution (75 percent of the votes at the EGM.
3, You could seek obligatory mediation at Fair Trading, prior to action at NCAT to have the decisions revoked and the common property restored at the errant committee members’ expense. (Section 24 of the Act)
4. You could seek obligatory mediation at Fair Trading, prior to action at NCAT to have one or more of the committee members removed from the committee. (Section 238)
5. You could go to NCAT (mediation not a prerequisite) to have a compulsory strata manager appointed. (Section 237) NB: This is a “be careful what you wish for” move as the chances are high that you may be unhappy with the appointment of a strata manage who will be answerable to no one and have full powers to run the strata scheme as he or she sees fit.
However, the NCAT application form sets out the grounds and conditions for such an appointment thus:
Describe how the management structure is not functioning satisfactorily
OR
• Provide evidence of the owners corporation’s failure to comply with an NCAT order, failure to perform one or more of its duties
OR
• Provide evidence of the owners corporation’s judgement
• What functions do you want the agent to have and exercise?
• Attach the written consent from a managing agent listing their terms, conditions, fee and licence under the Property, Stock and Business Agents Act, 2002.However, before you embark on any of the above options, make sure you have the support of a substantial number of fellow owners, or you will be dismissed as a trouble-maker. Better to be seen as a problem solver.
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Excathedra said:
There are five business days within a typical week, and this may be further reduced if the owners include some observant Jews who may feel excluded if the meeting is scheduled for a Friday.
You learn something every day. I always though the Jewish Shabbat was on a Saturday, but I looked it up and apparently it’s from just before sunset on Friday until after dark on a Saturday. Was I the only person who didn’t know this?
Anyway, as much as we try to accommodate our neighbours, you can’t let one owner dictate when meetings should be held. There are so many alternative forms of participation, from proxy and electronic voting, to even Skyping, that there’s no reason to change a set plan.
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Changing the layour of rooms in an apartment requires planning permission in most local council areas. Building a bathrom where it could cause noise nuisance to neighbours (i.e. it’s above their bedroom) is worthy of checking.
Contact the council and ask them to issue a stop-work order, then get an application in to Fair Trading immediately on as many issues as you think have a solid basis for challenge.
Regarding section 25, you have 28 days from a meeting to file an application to NCAT on the grounds that people were denied a vote and that vote would have changed the final outcome.
You can also challenge the special resolution by-laws on the grounds that they are incompetent because they breach a superior law (planning, for a start).
Once you have filed your mediation application, ask NCAT for interim orders to stop the work from going ahead until the issue has been resolved.
Deal with your apathetic committee at the next AGM by running candidates for election- this is not the time for a palace coup.
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The strata manager works for the owners corp – that’s all owners, not just the committee.
My guess is that the owner concerned wanted the SM to intercede on their behalf but the SM did something quite clever (in my view) which was to divert them to a solicitor who would either tell them, correctly, that there was little under the law that could be done or write a letter making demands to which they were not entitled (bluffing, in other words) and charge them handsomely for it.
If the SM had said, “get your solicitor to write a letter and I will tell the committee that they have to abide by the demand” then that would have been collusion. But he or she didn’t. To my mind this was a classic diversionary tactic; mostly harmless and largely inconsequential.
That said, now that I’ve realised who you are, and recognise your strata scheme as having had a long history of problems with the developer and strata managers, maybe I’m being too generous. But that doesn’t alter the essence of the response. A lawyer’s letter should make little or no difference to anything except the entitled owner’s bank balance.
Regarding the coding, I did make that a general comment and thank you for letting me know that it didn’t show up on your screen. Now I have to find another way of dealing with this, as you are not the only subscriber to have done this.
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I don’t understand what the problem is here, apart from the SM suggesting that the owner might want to send a lawyer’s letter (which is valid advice and will probably not make any difference).
What I see here is a strata manager responding to an owner by stating the facts, admittedly by shifting the responsibility away from themselves (which is also valid, since it’s the secretary and committee that sets the date).
Is your issue with strata managers dealing directly with individual owners? Many strata schemes wish their strata managers would do that. Are you saying the strata manager is colluding with this owner?
Actually, I’m not at all sure what you are saying. Perhaps you could reword your question more specifically: what’s the issue and what do you want as an outcome would be the start. What would you have hoped would have happened in this instance? When you say this isn’t the first time such things have occurred, what other issues have there been?
On another matter entirely, the original version of this posts had dozens of lines of coding from the cut-and-paste of the email. This is something we get a lot.
This is a message to all Flatchatters: Please clean up your posts of all that excess coding when you can. It is ugly, confusing and may result in your post being deleted.
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According to the “Who’s responsible …” Memorandum issued by the state government, the lot owner is responsible for the fixtures, fittings and tapware in the bathroom, while the owners corp is responsible for the original tiles and waterproofing (with some exceptions).
However, what complicates this is that the OC is also responsible for replacing or repairing any lot property that is damaged during a repair to common property.
Looking at the work outlined above, the taps and shower screen are all going to be reinstated and the brickwork and tiles are to be repaired and/or replaced – which brings us to the question of the bath.
The hole in the bath is not OC responsibility, but if the bath can’t be removed and replaced without significantly damaging it, then it should be replaced at the OC’s expense.
By the way, if the bath was damaged accidentally (rather than through wear and tear) the lot owner could probably make a claim through strata insurance.
I would try to ascertain whether or not the bath could reasonably be replaced intact in its current state. If not, then the OC is up for the cost of its replacement. If it could be put back, regardless of its present state, then the lot owner should be asked to pay for a new bath if they don’t want the old one reinstalled.
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Just as the strata committee makes decisions as if it was the owners corporation, a delegated strata manager makes decisions as if he or she were the committee.
And, yes, in both cases, they are expected to observe strata laws and regulations and enforce by-laws.
There is a specific section of the Act (232 [2]) that deals with the failure of the committee or strata manager to fulfil their duties.
However, you have to seek mediation at Fair Trading before you can seek orders at NCAT, and simply initiating that process is often enough to get them moving.
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You can sign an agreement now to take effect when the other one ends but I’d be concerned that your committee hasn’t addressed the termination of the current agreement which, at the very least, will require a period of notice to be given and approval at a general meeting.
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There are two processes by which a committee member can be removed from office in NSW; a special resolution at a general meeting and by orders from NCAT.
However, that is jumping the gun. In your shoes I would be presenting the owner with a series of requests giving her the chance to put things right. These would be:
1. A request for a full inspection of the changes by a certified surveyor, at her expense.
2. Her agreement to all the by-laws necessary to protect the owners corp against claims if any of the renovations prove to be faulty or have an impact on common property.
3. Retrospective approval from the local council planning department for changes she has made and remediation where that wasn’t forthcoming.
If she was not prepared to accept any of these conditions, I would quietly explain that the next step would be a general meeting specifically to have her removed from the committee (where all her actions could be aired publicly) followed by action at NCAT and through the local council to have all the unauthorised changes restored.
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I don’t want to get all bush lawyer on everyone but Section 35 of the Act refers to committee members vacating their seat because of ceasing to be eligible (not ceasing to own) and that makes sense because non-owners can be on the committee if nominated by owners.
There is another clause that says if the committee member was an non-owner at the time of election and the owner who nominated them sells, then they lose their position
By my reading, that means the committee member might have to vacate if they had self-nominated before the last election. Otherwise, if they’d been nominated by another owner, they would be free to stay on because they were still “eligible” (and could stand for election again).
That said, just the fact that a non-owner wanted to stay on the committee would have me sniffing the air for foul play.
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