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The tenant should be getting official Notices To Comply on both the parking and behaviour on common property (14-year-old driving). These can lead to fines.
They should also be reminded that breaching by-laws is a breach of their lease which could lead to them being evicted by their landlord.
Contacting managing agents about this kind of thing is usually a complete waste of time. You don’t need to send warnings … a Notice To Comply is a warning.
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@Whoopi said:
Some of the committee are holding proxies and have also been named company nominees holding unlimited votes for investors that have multiple lots.The company nominees’s votes are only valid if they are listed on the strata roll as such.
Schedule 1.
23 Persons entitled to vote at general meetings
(1) Persons who have right to vote
Each owner… has voting rights that may be exercised at a general meeting of the owners corporation, but only if the owner or person is shown on the strata roll and, in the case of a corporation, the company nominee is shown on the strata roll.
You might want to keep that under your hat until a general meeting when people say they are acting as a company nominee but aren’t listed on the roll, and you can challenge them then.
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This is what the Act says in Schedule 2, Section 26 (7):
Limit on number of proxies that may be held
The total number of proxies that may be held by a person (other than proxies held by the person as the co-owner of a lot) voting on a resolution are as follows:
(a) if the strata scheme has 20 lots or less, one,
(b) if the strata scheme has more than 20 lots, a number that is equal to not more than 5% of the total number of lots.Note that the Act refers to the number of proxies that may be held by “a person”.
To me, that means an individual and not necessarily a lot owner, is the proxy holder. So people can’t say they are holding X number of proxies as the owner of their residential lot and also holding Y number of proxies as owners of their parking space (even though it is an individual lot).
Now, when it comes to counting parking spaces that are separate lots as separate votes, that’s fine – but you should insist on a poll vote being taken, which you can do at any time, and which is compulsory for special resolutions and committee elections.
So if you have 165 separate lots (including parking spaces), as you say, then individual proxy holders are entitled to hold up to 5 percent of the number as proxies, which is eight proxies per person.
But are those parking spaces really separate lots that get separate levies bills? In my building, some parking spaces are counted as part of the overall residential lot and others are separate and listed on the roll as such.
Then there is the issue of how many unit entitlements those separate lots carry (car spaces generally have 5 to 10 percent of the value of apartments), which is where a Poll vote comes in. A car space vote can equal a residential vote in a show of hands, but it would be nowhere near matching it in a Poll vote which counts Unit Entitlements.
This is what you need to do.
1) Get a copy of the strata roll and see which parking spaces are actually separate lots.
2) Take a note of the unit entitlements, especially of the parking lots.
3) Make sure the proxy “cap” is based on the actual number of lots recorded on the strata roll and not an assumption that all parking spaces are separate lots.
4) Insist on a poll vote for every issue at general meetings so that the true voting value of car spaces is properly reflected.
Let me give you an example:
Say you have 100 residential units, some of which have car spaces included as part of their lot, with an average unit entitlement (UE) of 50.
But you also have 20 car spaces that are individual lots with an average UE of 5 .
For the sake of proxy calculations, you would have 120 lots, meaning individuals can carry a maximum of six votes.
So lets say that the proxy holders, for the sake of argument, have three residential lots and three separate car spaces’ votes.
In a show of hands, they would have six votes out of 120 or 5 per cent. However, in this example, in a poll vote they would have 165 UEs out of a total of 5100, which is only 3.2 percent.
Now these figures are hypothetical and there are a number of variables in real life but you can see how getting the figures right in the first place then insisting on poll votes can reduce the voting power of people counting on parking spots to inflate their numbers.
Be absolutely rigid on this. It’s only the lots listed on the strata roll that have separate voting power and owners can have car spaces in an entirely different part of the building that are still listed as part of their residential lot.
Go to the strata roll – it is your Bible in these matters.
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You may prefer not to “take things legally” but if the strata committee won’t play ball that is your next best option.
By asking them to fix what is to all intents and purposes a common property defect, and them refusing to do so without a by-law (which is NOT required, by the way) they trigger the provisions of section 232 (e) of the Act, namely “failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme.” The “function” in this case is the Owners Corps’s legal obligation to maintain and repair common property.
In 232(2) the Act defines failure to exercise as “an owners corporation [or] strata committee …. is taken not to have exercised a function if: (a) it decides not to exercise the function, or (b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
So you have asked them to fix common property and they have effectively refused or failed to do so. Your next step MUST be to seek mediation at Fair Trading with a view to pursuing orders at NCAT. Perhaps that might sharpen their thinking.
If you are worried about putting noses out of joint, just tell the other committee members that you have had advice contrary to theirs and all you want is an independent referee.
Then sell them the insulation …
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@Paddy said:
So if the cost to repair/replace the skylight is less than the Strata insurance excess, the owner should be required to pay?It depends on the specific wording of the by-law that allowed the skylight to be installed in the first place. But if it passes the cost of repairs etc to the lot owner, then, yes, the lot owner should pay the balance.
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@alfredo said:
Is it legal if both are casting opinions, comments, agreement or opposition to influence the meeting’s agenda in such a way that the son/daughter then vote on an item?Not sure what you mean by this but they can’t both vote on the same issue and they really shouldn’t both be speaking on the same topic (but that’s an issue that would be covered if you had standing orders for meetings, which you probably don’t). People on committees are allowed to influence agendas – that’s one of the reasons they are there.
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@Curly said:
So after all this I don’t think there is anything we can now progress to NCAT as the majority of owners clearly had no concerns with OC funds being used to convert the lawn to concrete for the benefit of a single lot owner.Not so. As an individual owner, you can ask NCAT to overturn decisions that were either in breach of strata law or unfair (even if they were agreed by a majority). An owner has been given a chunk common property land without compensating the Owners Corp. There are precedents for this, meaning they should have to pay something (also that the OC should have sought permission from council) for changing the conditions under which the DA was granted.
That said, you might want to just let it go as you are in the minority and it isn’t going to make life any easier.
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Strictly speaking, information contained in minutes is not private information – but the strata committee should be handling this a lot better.
As members of the Owners Corporation, you and all your neighbours are entitled to know what problems there have been, what discussions the strata committee have had and what steps have been taken to remedy them. However, there is no legal requirement for them to “name and shame” owners. That’s a choice they make, and they do so at their own peril.
Strata committees are protected to a certain extent by “qualified privilege” which means they can discuss issues and distribute information that aids the general running of the building, without fear of being sued for defamation, for instance.
The protection is seriously diminished, however, when there is evidence that a) the information has been available to non-owners and b) there is an element of malice behind it.
Minutes on a notice board can be seen by non-resident guests and tradespeople, so they are effectively being broadcast to a wider public than the law prescribes. The question of “malice” is something only you and they know.
The first thing I would do is to “redact” the minutes with a black felt tip pen and inform the secretary that rplacement with your name and unit number visible will be interpreted as a deliberate and malicious act. Then I would present a motion to the committee that in future, residents would be identified only by their lot number (not their unit number and not their names).
On the question of the goods in the yard, I would send a letter to the secretary asking what by-laws have been breached and telling them to use the official Notice To Comply form if such a breach has occurred.
On the matter of the photographs, it is an invasion of privacy only if the photographer was on private property taking pictures without permission.
However, common property is, effectively, the private property of the Owners Corporation. So you can ask who gave permission to the photographer to use common property to photograph your yard, when was this discussed at any official meeting and why were you not informed?
If they can’t adequately answer that, ask that a Notice To Comply be issued to the person who supplied the pictures (Bylaw: Behaviour on common property) along with a demand that all copies of the pictures be destroyed.
Oh, and slightly off topic, some advice from an old journo: You might want to keep your finger away from the Exclamation Mark (or what we used to call a “screamer”)! Overuse indicates a somewhat less than calmly considered opinion. Just saying!!!
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A TV and sofa, and stored goods are bad enough – but when there is no safety rail.
If the strata committee is aware of this, they need to send notes (or stick them on doors) telling people that they mustn’t use their balconies until they are safe and until such times as they are made safe, they do so at their own risk. The balconies are more than likely common property – that means the owners corp is responsible.
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