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@Quirky said:
Not to disagree with Jimmy T, but I think you may be taking the wrong approach with this matter. It is the Strata Committee that is (I assume) in the wrong here, rather than the Strata Manager. It is the Committee you need to take action against, not the Manager.I don’t think you’re disagreeing with me. The problem is the committee first and a complicit strata manager second.
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If you feel that the statutory manager is not servicing the strata scheme in the best interests of the owners, then you can apply to NCAT to have the terms of their appointment changed (for instance, to include all major expenses being subject to at least two quotes).
This would come under Section 237.7 (below). But gather all the evidence for this that you can before embarking on what could be a tough endeavour.
By the way, no strata manager, statutory or otherwise, can prevent an owner bringing a guest on to the property. If you want another tradie to give you a quote, have them accompanied by a resident.
And remember, there’s a reason that tradies say having a relationship with a statutory manager is a licence to print money.
Tou might also have a look at this thread …
237 Orders for appointment of strata managing agent(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.(7) Revocation of certain appointments
An order may be revoked or varied on application and, unless sooner revoked, ceases to have effect at the expiration of the period after its making (not exceeding 2 years) that is specified in the order.
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I don’t know about professional opinion but you can have my opinionated layman’s view.
Any decision that is made at a meeting that hasn’t followed the correct procedure of agendas and notices has no validity and can be challenged at NCAT.
I suspect by now you’ll have sorted all this out, but if not, insist things are done by the book.
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There’s a lot you can do when a committee isn’t functioning correctly and the strata manager is allowing this to happen.
This is a trap a lot of strata managers fall into, where it’s easier to let the committee continue to do the wrong thing in the hope that they don’t give you any hassle and renew your contract when the three years standard period is up.
Also, some strata managers have a very tenuous grasp of strata law and how it’s supposed to work.
To answer the question on who regulates them, the answer is Fair Trading – but don’t hold out any hope there. Fair Trading are worse than useless in this regard. They have never struck off a strata manager for being crap at their job … ever.
However, there are a number of options open to you. The simplest, in theory, is to engineer the removal of the committee at the next AGM and then have the […] SM lift his game.
Failing that, and there are a number of reasons why that might not work, you can apply to NCAT to have individual members of the committee and/or officers of the committee removed under Section 238 (below).
You can also apply to the Tribunal to have the strata managing agent removed for a number of reasons, including failure to fulfil their duties according to the Act. That comes under Section 72 (also below).
Finally, there’s the Armageddon option where you apply for the appointment of a strata manager to take over the running of the scheme for the owners Corporation entirely. This comes under Section 237 (below).
You would only go for this when the scheme is so dysfunctional that you don’t mind giving up what little power you have, just to get things put right. This comes under “be careful what you wish for” as you might find the rule of one outsider more oppressive than the confederacy of self-interest you have at the moment.
And at this point my best advice is to consult an experienced strata lawyer and ask for their advice.
238 Orders relating to strata committee and officers(1) The Tribunal may, on its own motion or on application by an interested person, make any of the following orders:
(a) an order removing a person from a strata committee,
(b) an order prohibiting a strata committee from determining a specified matter and requiring the matter to be determined by resolution of the owners corporation,
(c) an order removing one or more of the officers of an owners corporation from office and from the strata committee.(2) Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has:
(a) failed to comply with this Act or the regulations or the by-laws of the strata scheme, or
(b) failed to exercise due care and diligence, or engaged in serious misconduct, while holding the office.72 Strata managing agent and building manager agreements may be terminated or varied by Tribunal(1) The Tribunal may, on application by an owners corporation for a strata scheme, make any of the following orders in respect of an agreement for the appointment of a strata managing agent or building manager for the scheme:(a) an order terminating the agreement,
(b) an order requiring the payment of compensation to a party to the agreement,
(c) an order varying the term, or varying or declaring void any of the conditions, of the agreement,
(d) an order that a party to the agreement take any action or not take any action under the agreement,
(e) an order dismissing the application.(2) If the Tribunal makes an order terminating the agreement, the Tribunal may also order the strata managing agent or building manager to return to the owners corporation, within the period specified in the order, any documents or other records relating to the strata scheme that are in the possession of the agent or manager.
(3) The Tribunal may make an order under this section on any of the following grounds:
(a) that the strata managing agent or building manager has refused or failed to perform the agreement or has performed it unsatisfactorily,
(b) that charges payable by the owners corporation under the agreement are unfair,
(c) that the strata managing agent has contravened section 58 (2),
(d) that the strata managing agent has failed to disclose commissions or training services (including estimated commissions or value of training services or variations and explanations for variations) in accordance with section 60 or has failed to make the disclosures in good faith,
(e) that the strata managing agent or building manager has failed to disclose an interest under section 71,
(f) that the agreement is, in the circumstances of the case, otherwise harsh, oppressive, unconscionable or unreasonable.237 Orders for appointment of strata managing agent
(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.(2) Order may confer other functions on strata managing agent
The Tribunal may also, when making an order under this section, order that the strata managing agent is to have and may exercise:
(a) all the functions of the chairperson, secretary, treasurer or strata committee of the owners corporation, or
(b) specified functions of the chairperson, secretary, treasurer or strata committee of the owners corporation, or
(c) all the functions of the chairperson, secretary, treasurer or strata committee of the owners corporation other than specified functions.(3) Circumstances in which order may be made
The Tribunal may make an order only if satisfied that:
(a) the management of a strata scheme the subject of an application for an order under this Act or an appeal to the Tribunal is not functioning or is not functioning satisfactorily, or
(b) an owners corporation has failed to comply with a requirement imposed on the owners corporation by an order made under this Act, or
(c) an owners corporation has failed to perform one or more of its duties, or
(d) an owners corporation owes a judgment debt.(4) Qualifications of person appointed
A person appointed as a strata managing agent as a consequence of an order made by the Tribunal must:
(a) hold a strata managing agent’s licence issued under the Property, Stock and Business Agents Act 2002, and
(b) have consented in writing to the appointment, which consent, in the case of a strata managing agent that is a corporation, may be given by the Secretary or other officer of the corporation or another person authorised by the corporation to do so.(5) Terms and conditions of appointment
A strata managing agent may be appointed as a consequence of an order under this section on the terms and conditions (including terms and conditions relating to remuneration by the owners corporation and the duration of appointment) specified in the order making or directing the appointment.
(6) Return of documents and other records
A strata managing agent appointed as a consequence of an order under this section must cause a general meeting of the owners corporation to be held not later than 14 days before the end of the agent’s appointment and must on or before that meeting make arrangements to return to the owners corporation all documents and other records of the owners corporation held by the agent.
(7) Revocation of certain appointments
An order may be revoked or varied on application and, unless sooner revoked, ceases to have effect at the expiration of the period after its making (not exceeding 2 years) that is specified in the order.
(8) Persons who may make an application
The following persons may make an application under this section:
(a) a person who obtained an order under this Act that imposed a duty on the owners corporation or on the strata committee or an officer of the owners corporation and that has not been complied with,
(b) a person having an estate or interest in a lot in the strata scheme concerned or, in the case of a leasehold strata scheme, in a lease of a lot in the scheme,
(c) the authority having the benefit of a positive covenant that imposes a duty on the owners corporation,
(d) a judgment creditor to whom the owners corporation owes a judgment debt.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.
@Lady Penelope said:
This is an issue that impacts on both the safety of the building and the appearance of the building. In my opinion these are matters that should be decided by the whole body of owners rather than the Committee.Given that this is not a necessary repair and is in fact an enhancement of common property, Section 108 (below) would apply, meaning a special resolution at a general meeting was required.
108 Changes to common property(1) Procedure for authorising changes to common property.
An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.
(2) Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.
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You don’t have to prop the door open, just disengage the locks until the work is done. This then becomes a security issue rather than fire safety but you just need to make sure your security is covered in other ways. You might also position some chairs on the fifth floor for residents who might need to take a rest.
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@Lady Penelope said:
While it may sound like an attractive option for some schemes, I am not sure that the ‘increased insurance for common property’ argument against AirBNB will have any ‘legs’.This was a suggestion made by the recent outgoing Commissioner for Fair Trading. I can’t see why it wouldn’t fly, unless the additional insurance was plainly out of whack. As I said, find an insurer who will add the extra premium and take it from there.
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The part of the Act you cite says this:
(3) Decisions to have no effect if opposed by more than specified owners
A decision of a strata committee has no force or effect if, before the decision is made, notice is given to the secretary of the owners corporation by one or more owners, the sum of whose unit entitlements exceeds one-third of the aggregate unit entitlement, that the making of the decision is opposed by those owners.
So this is saying that if the owners of lots that have one-third or more of unit entitlements oppose a motion on an agenda (in writing, collectively, one might assume) then the agenda item can’t be approved.
I don’t see where the confusion is except you may be wondering how you go about this. Or maybe you don’t understand what unit entitlements are.
Perhaps if you tell us what it is you don’t understand we can explain better.
Regarding the costs, there is provision in the Act for the Tribunal to award costs against the Owners Corporation or the committee and specify that these costs have to:
a) Be raised by a special levy
and
b) That levy should exclude the people on the “winning” side.
As for your last question about another property that unknowingly committed a breach, people acting in good faith are generally exempt from liability for further penalties but if you have been told you are doing something wrong but continue to do it, those personal exemptions evaporate.
I would say that you and your neighbours need to hire an experienced strata lawyer as a matter of urgency and then get them to make sure costs are awarded against the other side.
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@JonH said:
Is it within the law to charge the owners who are renting out their units, short term, an additional charge or levy to cover … the amount of time the concierge has to spend on Airbnb guest issues – for which all owners are paying?I think you could perhaps pass a by-law saying that the concierge will only service residents who are registered as lot owners or lessees under section 258 (below).
You would also take them to the tribunal seeking fines for failure to notify the lease or sub-lease as outlined in 258.
I think you could pass another by-law that institutes an “exceptional circumstances call-out fee.” This would cover all residents and apply to very specific cases of noise complaints etc etc after hours.
And, of course, the noise complaints or damage could lead to Notices To Comply to the Airbnb hosts, followed by fines.
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.
(6) A notice under this section is to be given to the original owner if it is given during the initial period of the owners corporation for a strata scheme.
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@Miniminoral said:
Now that the draft by law is in the AGM papers is there anything I can do at the AGM or before then to have this paragraph changed or removed?Yes. You can propose an amendment which, provided it doesn’t alter the basic intent of the motion, can be passed before the by-law is voted upon
Can a DA requirement be overridden or removed by a strata by law?
No. By-laws can’t contravene superior law and planning regulations are superior law.
Are there legal consequences for the owners corporation if a by law is passed which doesn’t meet DA requirements?
The by-law can be challenged on this basis and deregistered.
If the by law is passed and this paragraph is subsequently found to be invalid who would bear the costs of rectifying the works done by the tenants based on this by law?
The owners corp becomes liable for any costs in rescinding and redrafting the defective by-law. You could argue that committee members who supported the defective by-law after being told it was defective had not acted in good faith and so should pay some of the costs. But more likely the costs would fall to the Owners Corp and the benefitting lot owners if they have been informed that their by-law is defective and ignored the advice.
As it should be a poll vote, you will know who voted for and against the defective by-law so then you can try to get Tribunal orders so that only the people who voted for it, in full knowledge that it was defective, have to pay for fixing it.
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@Lady Penelope said:
Generally you cannot discriminate between occupants of the building.This is true … except where such a change of use means increased insurance costs, under section 82 (below). A smart strata scheme wishing to deter Short-term Holiday Lets might invite their insurer to increase premiums to cover the risk created by STHLs and then pass the increased fee on to the hosts.
82 Individual contributions may be larger if greater insurance costs(1) If the use to which a lot in a strata scheme is put causes an insurance premium for the strata scheme to be greater than it would be if it were not put to that use, so much of a contribution payable by the owner of the lot as is attributable to insurance premiums may, with the consent of the owner, be increased to reflect the extra amount of the premium.(2) The Tribunal may, on application, make an order for payment of contributions of a different amount to one or more contributions levied or proposed by an owners corporation on an owner if the Tribunal is of the opinion that the owner’s consent has been unreasonably refused under this section.(3) An application for an order under this section may be made by the lessor of a leasehold strata scheme, an owners corporation, an owner of a lot or a mortgagee in possession.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.
@GeorgeB said:
Anyone out there? A response would be appreciated …I note in your previous post you asked for a Supreme Court judge to comment. I guess we don’t have too many of them active on the website.
But we do have two sponsors – one a strata lawyer and the other an expert on concrete cancer. How about giving either or both of them a call?
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I suspect that the move to make the balconies “compliant” has more to do with the look rather than safety.
A strip of glass along the top would do the trick and be a lot less expensive.
In any case, there is no need, as Scottie pointed out, unless you are doing other work on the balconies that required planning permission.
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As I said, I’m not sure how easy or difficult this is, and it may vary from council to council.
But if you go in with an attitude of wanting to abide by the rules while doing the best for your family, you will get a more sympathetic response from your future neighbours.
Starting from the point of view of “I don’t like your by-laws, I’ll do as I want” will make you an enemy of your neighbours before you’ve even set foot in the door – and probably won’t get you the result you desire.
Google the phrase “assistance dog NSW” and that will open up a whole world of possibilities for you.
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@apartment_living said:
Thanks very much for the suggestion. Do we need to go to those lengths, or can I apply on reasonable grounds, with a doctor’s letter?
When you say “go to those lengths …” it make me wonder whether this is as big a deal as you say. It also makes me wonder if you should be moving into an apartment at all – certainly one in this specific block.
If you just turn up with just a doctor’s note, you will be opening yourself up for a long an bitter dispute with your neighbours (which you will probably lose). The fact that this could be avoided with a little effort on your part seems not to concern you.
How about just trying to do the right thing? See my previous comment about “after all it’s my property”.
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