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An issue like this is such small beer (for a strata committee) and so clear cut that I would be very surprised if you could find any record of another similar issue (although if anyone can it will be Lady P). This is the kind of thing where a motion goes to committee, there’s agreement and a compensation cheque is cut. It’s not something anyone apart from the over-billed strata owner would go to the barricades over.
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Bear in mind that mediation is (from Fair Trading’s point of view) an exercise in compromise and getting a problem off the books, so to speak. They are not there to adjudicate on the rights and wrongs of the problem.
From your point of view, its a necessary prerequisite to action at NCAT and an opportunity to show the other side that you are serious. The actual strength of your case is an entirely different matter that can only be assessed by NCAT. But you can’t go to the Tribunal without having been to mediation.
I have been to mediation once and it was pathetic. The other owner wouldn’t undetake not to continue breaking by-laws (very loud parties that went on all night) and the mediator told me that I couldn’t complain about both the level of noise and the hours when it occurred.
It ended with me explaining (mansplaining?) strata law to the mediator (she loved that) and telling both of them that all I wanted was to tick the mediation box so I could pursue this at the Tribunal. That had the desired effect and the other party started to behave thereafter.
Now, I could have gone in there having told my contacts at Fair Trading what I was doing and it would have been a very different result. But I wanted to find out what it was like for people who don’t have a newspaper column to fall back on.
So keep your expectations low and if an acceptable compromise is offered, tell them you want it in writing by a certain date (maybe two weeks hence) or you will be proceeding to NCAT.
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JK91 said:
… there is a contract that has been signed is for 5 years (signed by a previous member of the committee).
Is there an agenda item and minute of the committee meeting that agreed to this? If there is no agenda item and related minute, the contract is invalid (unless it was agreed by the strata manager acting for the strata committee).
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If it’s under the floor and above the ceiling, it’s almost certainly common property in which case the Owners Corp should pay.
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It says quite clearly in the original post that the plumbing issue was the responsibility of “the strata” which I’m taking to mean the owners corporation.
The OC “owned” the problem and they damaged the carpet in fixing it. It’s absolutely clear to me that the OC has a responsibility here, however ridiculous it may seem for them to be replacing a carpet well past its use-by date.
A responsible strata committee should be offering a compromise of some sort and while that may not run to a whole new carpet, that’s what they could be facing if the lot owner decided to play hard ball.
There is no way an individual owner should have to pay for the consequences of the owners corp having to fix a problem in common property.
And, yes, the committee can make that decision. A special resolution is not required so neither is an EGM.
By the way, the section of the “Who’s responsible?” document that used to say all the stuff about the OC being responsible for the repairs to lot property that was damaged when they were repairing something else has been quietly removed. It was an anomaly anyway.
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Fey Knows said:
The Strata Manager, to whom all authority has been given by the Committee, simply says only ‘self-certification’ is required these days.
Firstly, the strata committee can take back any delegated responsibilities from the strata manager whenever they choose, and the owners (at a general meeting) can take back authority from the committee.
The question of self-certification only applies to work that doesn’t, for instance, involve installing bathrooms. Your strata manager needs to have a look at the legislation and regulations regarding major and non-major works.
The owners corporation can set its own reasonable parameters for the permission for work that impacts on common property, but at a very basic level, the tradies must be certified and insured. These parameters include hours for noisy work (drilling etc), disposal of rubbish, parking of tradies’ vehicles and use and protection of lifts.
Be very wary of the builder issuing a document saying that the work is “complying” and doesn’t need council approval. We had a party-boy neighbour remove a room, which would normally require a DA as its changing the configuration of the floor plan. He got a builder mate to issue a complying certificate, our idiot strata committee accepted it at face value, the council accepted the strata committee had no objection, and told us they had no dog in the fight and to take it up with the builder. We eventually sold our unit because of the noise from the expanded lounge room.
So inform the council of the plans and tell them that they are not approved. Then go to the lot owners with a list of the conditions, guarantees and assurances you will require before approving the works by special resolution.
Or prepare to enter years of conflict as the “self-certified” work causes problems that can’t be fixed.
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I agree with SPmanager (above). What I forgot to say was that the strata manager may not be at fault on any of the matters raised, especially if individual owners are working the rules to their personal advantage.
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If you think getting rid of the strata manager is the answer, you can do this by mutual consent, by getting orders at NCAT or – and this is the trickier of the three – finding a clause in their contract that they have clearly breached.
The use of money from the capital works (sinking) fund to pay Admin shortfalls is not that unusual but under Section 76 (2) that money has to be repaid withing three months or a special levy raised to repay the money.
Many strata committees and strata managers will avoid the latter by moving the money back and forth during the course of a financial year, then adjusting the amounts of the levies at the next AGM, evening matters up between the two funds while avoiding the pain of special levies.
It does sound, however, that your budget is out of whack and needs close examination, especially for future maintenance. It may be that your strata manager is keeping committee members happy by avoiding increases in levies through plundering the capital works fund.
On the matter of the insurance claims, you need to discover who made them and under what circumstances. This sounds suspiciously like individuals taking advantage of insurance coverage of fixtures and fittings to get themselves a nice new kitchen or bathroom.
But individuals can claim against strata insurance for items covered in their own lots – and some of the lots covered would surprise you. Tighten up procedures with the insurers and the strata managers and ask them to investigate and report on the incidents on which they paid out.
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Owners corporations will be allowed to have by-laws banning short-term letting when the new laws come in later this year.
Meanwhile, if your building is zoned residential only, you can have a by-law that says something like “as this building is zoned residential only, defined as lets no less than 30 days (or whatever the local council says), then short-term holiday letting is forbidden.”
That’s it. It’s all or nothing. You can’t have a by-law that allows Airbnb for so many nights a year or whatever. .
And it’s a by-law which has to be passed at a general meeting by 75 percent of those voting.
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Sanctuary said:
The BC will give you a spreadsheet with all the owners contact details on it. You are entitled to the information.
You are entitled to see anything that forms part of the strata roll. That will include addresses but they might just be the addresses of lawyers or agents. They might not include phone numbers and email addresses.
Also, more generally speaking, Section 5 Of the Victorian Owners Corporation Act says this:
5. Owners corporation must act in good faith
An owners corporation in carrying out its functions and powers—
(a) must act honestly and in good faith; and
(b) must exercise due care and diligence.Operating out of self-interest is not acting in good faith.
So what can you do? Well, you could raise a dispute with VCAT under Section 165 which is a virtual smorgasbord of potential actions you could take against a corrupt and/or incompetent owners corporation and/or strata committee.
165. What orders can VCAT make?
(1) In determining an owners corporation dispute, VCAT may make any order it considers fair including one or more of the following—
(a) an order requiring a party to do or refrain from doing something;
(b) an order requiring a party to comply with this Act or the regulations or the rules of the owners corporation;
(c) an order for the payment of a sum of money—
(i) found to be owing by one party to another party;
(ii) by way of damages (including exemplary damages and damages in the nature of interest);
(iii) by way of restitution;
(d) an order varying any term of a contract or agreement;
(e) an order declaring that a term of a contract or agreement is, or is not, void;
(f) an order declaring—
(i) the terms of a delegation; or
(ii) the meaning of a rule of the owners corporation;
(g) if an owners corporation is required under this Act to have a committee and a committee has not been appointed at or immediately after the first annual general meeting, an order appointing a committee of the owners corporation;
(h) an order appointing (with the person’s consent) or revoking the appointment of—
(i) the chairperson of the owners corporation;
(ii) the secretary of the owners corporation;
(iii) a member of a committee or subcommittee of the owners corporation;
(i) an order—
(i) appointing a person (with the person’s consent) as manager of the owners corporation, on specified terms and conditions;
(ii) revoking the appointment of a manager of an owners corporation;
(iii) imposing conditions or restrictions on the management by a manager of the owners corporation;
(j) an order in relation to damaged or destroyed buildings or improvements;
(k) an order as to the payment of insurance money under any policy taken out by an owners corporation;
(l) an order requiring an order to be recorded in the owners corporation register, the register of managers or in the Register kept under the Transfer of Land Act 1958;
(m) an order requiring the Registrar to amend the Register.
(2) In awarding damages in the nature of interest, VCAT may base the amount awarded on the interest rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 or on any lesser rate it thinks appropriate.
(3) VCAT may make any interim orders and ancillary orders it thinks fit in relation to an owners corporation dispute.
Note: Clause 51AD of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 provides that any
member of VCAT can make a declaration in a proceeding under this Act.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.
Phill74 said:
the OC doesn’t have the power to set levies (they can call a meeting for owners to set them, which didn’t happen), and therefore by extension, neither does the compulsory SM.
This is simply not the case. Under normal circumstances it is the OC (Owners Corporation) that sets the levies. The OC is all the owners acting as as a group.
Also you shouldn’t be using one set of circumstances to apply to completely different ones – strata doesn’t work like that. The idea that a compulsorily appointed strata manager can’t set the levies is ludicrous. How else are they going to fix things in an dysfunctional building if they can’t set proper levies?
It depends on the specific terms of the appointment, but in most cases that defaults to the SM taking over all functions of the OC. Just to be clear, compulsory strata managers aren’t appointed to take over from the Strata Committee (SC) alone – they take over from the Owners Corporation of which the SC is (or should be) merely an adjunct.
This is what the Act says:
(1) Order appointing or requiring the appointment of strata managing agent to exercise functions of owners corporation
The Tribunal may, on its own motion or on application, make an order appointing a person as a strata managing agent or requiring an owners corporation to appoint a person as a strata managing agent:
(a) to exercise all the functions of an owners corporation, or
(b) to exercise specified functions of an owners corporation, or
(c) to exercise all the functions other than specified functions of an owners corporation.
I have left all the hyperlinks in there so you can better understand what all those terms mean.
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You’d have to look at the terms of the lease to see if they were unreasonable or in breach of some other regulation. Regarding compensation, your fist battle would have to be to quantify the “loss” and that would keep you and your lawyers busy for months.
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Muellers won’t charge you for asking when they think the judgement will go through. However, payment may take longer, depending on the circumstances of the unit owner. Again, your lawyer should advise.
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