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@Sir Humphrey said:
The original questioner was from the ACT.
Missed that. Sorry!
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There is liability for the cost of debt recovery written into the legislation. Ignorance is no defence under law. The owners should pay – end of story. And if I were another owner who was facing paying a share of debt recovery costs, I’d be filling out a dispute form with Fair Trading and NCAT right now.
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With very few exceptions, anyone can be elected to the committee – owner, tenant or even non-resident, non-owner – provided they are nominated by a ‘financial’ owner who is not running for office themselves (or is a sole owner who self-nominates).
In NSW a tenant could be nominated by an owner and be elected ahead of an owner who doesn’t have the support of the majority of owners.
However, if this is in NSW, there are several discrepancies with this process as you describe it.
Firstly, tenants may not nominate themselves – they have to be nominated by an owner who is not standing for election.
Secondly, there is a very specific procedure for the committee elections which has not been followed in this case.
Have a look at sections 9 and 10 of the Strata Regulations and Sections 29-32 of the strata Act.
If the strata manager has allowed a tenant to nominate themselves, and then allowed a secret, unsupervised ballot that doesn’t follow the Regulations, they really need to go back to Strata Manager School.
If what you say is correct in every detail, the strata manager should declare the election of the tenant invalid and should replace them with the ousted owner as the next valid nominee.
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Apparently these days NCAT can and do award costs and penalties against recalcitrant owners and OCs, especially those whove treated the Tribunal’s orders with contempt. Has to be worth another roll of the dice.
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The definition in the Act say that an “unfinancial owner” means an “owner of a lot in a strata scheme who has not paid all contributions levied on the owner that are due and payable, and any other amounts recoverable from the owner, in relation to the lot.”
So if your levies arrive and you have been given until the 30th of the month to pay them, what is the date on which they become “due”. Does due mean the same as overdue? Most strata manager err on the side of caution and allow the full payment period to elapse before calling an owner unfinancial.
But if there is a dispute in the building, straws are grasped, loopholes are explored and fine print is scrutinized. I would lay odds on NCAT resolving this by saying the full 28 days or whatever period was stated in the levies notice would have to elapse before an owners was struck off.
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A lawyer’s opinion is just that. It is not the law. There is a lot of dubious interpretation in this opinion, not least unsupported claims of what the law intended. The lawyer is clearly working for the pro-STHL group in your building which is another reason it should be taken with a pinch of salt.
The assertion that the law was only intended to refer to “normal” lets is an opinion. NCAT and an NCAT appeal tribunal might disagree. Otherwise it’s just lawyers saying what their paymasters want to be said. If lawyers only ever expressed the fundamentsls of laww there would be no need for courts.
Action at NCAT to compel the OC to issue breach notices for failure to identify tenants would go some way to clearing this up.
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@Boronia said:
Additional “catastrophe insurance” seems like a bit of a scam to extract more dollars from you.I’m not so sure. As soon as lives are lost, your responsibilities go way beyond “knock down, rebuild”. I’m thinking the Grenfell Tower in London and the Bankstown fire. One a catastrophe by any measure, the other a tragedy that could have been so much worse.
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In all likelihood, the mailboxes will be common property. I’d send the “disruptor” a note telling her the lock should be removed within 24 hours or it will be removed by whatever means necessary and she will be charged for any damage to the common property as a result.
I assume your block has a by-law forbidding Airbnb rentals. If not, time to get one. If so, time to start pinging the disruptor with Notices to Comply and breaches of Section 258, which come with a maximum fine of $550 per offence.
Oh, and before you do anything else, take some screen shots of her Airbnb page describing herself as “the disruptor” and “rule-breaker”. They will go down really well at NCAT.
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By a “letter of compliance” do you mean a “notice to comply” (NTC) provided on the approved form? If so, the next step is to take them to NCAT for fines after they have breached the NTC. Provided you used the approved form in the first place, you can go straight to an NCAT application – you don’t need to go through mediation in that instance.
Also, you can seek penalties at NCAT for breaches of section 258 (below). This will require mediation first but could result in a maximium fine of $550.
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.
Note : An address for service of notices may be an Australian postal address or other electronic address, including an email address (see section 261).
(5) This section does not apply to the lease of a lot by the lessor of a strata leasehold scheme to a lessee who is the owner of a lot.
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@BONNIE L said:
… ask for advice from NCAT. They have a special department for tenancy concerns.I think you mean Fair Trading.
The Tenants Union (tenants.org.au) has a website full of very informative fact sheets covering just about every situation.
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@BONNIE L said:
In NSW I understand there is a mandatory amount for strata buildings to have in their capital works fund for future maintenance works.I don’t think so. There must be a fund and there must be a capital works plan and the scheme is supposed to follow it (but often doesn’t). But there is no mandatory amount.
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@Whoopi said:
NSW. So we had an AGM scheduled for a couple of weeks ago. 17 votes were in the room for the AGM, The Strata manager said she had proxies in her possession but did not reveal how many. She said we would wait half an hour to see if more turned up. No one did. We suspected a choreographed cancellation. The SM said we would not get a Quorum at this time of the year for another AGM.Just to clarify what ScotlandX has said above. The general meeting should not have been adjourned, it should have proceeded with those present declared a quorum after half an hour. Your strata manager either doesn’t know basic strata law or she is deliberately misleading you.
If you think she is in cahoots with a dysfunctional committee, I would start with a complaint to Fair Trading (who will do nothing) and an action at NCAT to have the strata manager removed under Section 72 of the Act, in both cases using these events as evidence.
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