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@Austman said:
So if you eg accidentally damage a kitchen or bathroom fixture, an OC/BC committee or manager can’t really say “we’re not going let you claim it on the OC/BC’s compulsory building insurance”.No, but they can say “we’re not going to help you to claim on OC insurance …” and that would be enough of a discouragement for most owners.
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This is not my area of expertise, but I do know this: According to strata law, if there is a conflict between Community Association rules and strata scheme by-laws, the Community Association takes precedence.
You should probably talk to an experienced strata lawyer if you are concerned.
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I’ve heard of worse – like tradies who fill their garages with their gear and leave notes on the windscreens of legitimate visitors, threatening terrible consequences if they park in THEIR visitor space again.
Write to the committee asking them what their plan is in terms of Notices to Comply and orders at NCAT.
Notices on doors and cars are just an irritation, NTCs and Orders carry the prospects of fines which, because they are paid back to the Owners Corp are worth pursuing.
If the SC say they’re doing nothing or just don’t respond within two months, you can start pursuing them under Section 232(2).
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@Ziggy said:
Just a question, if an owner can’t make the AGM, can they put their name up for election to the SC?Yes, you can nominate yourself (unless you are a co-owner) in writing before the meeting.
Howver, speaking personally, I wouldn’t vote for someone who didn’t turn up at the AGM unless they had a very good reason for not being there
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I think this is the story to which you are referring and this is the case referred to. This has very little to do with the running of strata schemes, for reasons I’ve outlined below.
To answer your question …
… whether Strata Committee members have a Code of Conduct? Can they write to owners saying they speaking from a personal view and not as a member of the SC to criticise, belittle or fabricate stories concerning other owners or facts?
The answer is, another question – do they? Does your strata scheme have a code of conduct enshrined in your by-laws? I’m guessing not, because very few strata schemes do. A quick search of this website will unearth considerable discussion on the issue, including whether you need one and if it is at all enforceable.
If not, and if you are in NSW, you would fall back on the very woolly Section 37 (below), which is qualified by section 260 (also below). In short, they say that as long as strata committee members are acting in good faith – i.e. they believe that what they say or do is correct – then they can’t be held personally liable.
So, in terms of “belittling” or “fabricating stories” these are two separate issues.
The first, “belittling” is pretty subjective. If an owner has been doing something wrong and someone mentions that in a meeting and it turns up in minutes, then it could be belittling. However, the committee member is arguably acting in good faith, in that they are reporting something that is related to the good management of your building.
On the other hand, fabricating stories is clearly and objectively not acting in good faith and that person could be subject to some disciplinary or legal action (although it should be noted that defamation actions in court are pretty much for rich people to extract money out of other rich people or bully poor people).
So, if there was someone on your committee who was defaming you, claiming it was in a personal capacity but repeating allegations made in committee, NCAT may well consider that they are still acting as a committee member and rule accordingly.
With that in mind, you could apply to NCAT, for example, to have them removed from the committee for abusing their position. Of course, you’d first have to apply for mediation at Fair Trading.
Now, there’s absolutely no guarantee you’d get satisfaction, but at the very least that would give you an opportunity to air your grievances in public and possibly attract an apology and a correction of the records without needing to employ teams of lawyers to argue your case.
37 Duty of members of strata committee
It is the duty of each member of a strata committee of an owners corporation to carry out his or her functions for the benefit, so far as practicable, of the owners corporation and with due care and diligence.260 Personal liability
(1) A matter or thing done or omitted to be done by any of the following persons, or a person acting under the direction of any of those persons, does not, if the matter or thing was done or omitted to be done in good faith for the purpose of executing functions as such a person under this or any other Act, subject any of the following persons or person so acting personally to any action, liability, claim or demand:
(a) an officer of an owners corporation,
(b) a member of a strata committee.
(2) Any such liability of an officer of an owners corporation or a member of a strata committee attaches instead to the owners corporation.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.
No, it’s not legal – they are not visitors.
Get your committee or strata manager to start issuing Notices to Comply to the commercial operators (you might have to establish which cars belong to which workers first).
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Send the person you believe responsible a bill for the excess.
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Are the doors and windows common property in a 1970s building?
With the exception of your fire rated front door, I suspect they aren’t, in which case I would be sending them an email saying that you have made every effort to consult with them and due to their lack of engagement you are going to go ahead and change the windows and balcony doors, albeit with due consideration for the look of the building.
If they are common property, tell them that you intend to take them to Fair Trading for mediation, followed by seeking orders at NCAT under Section 232 (2), compelling them to fix all the windows in the building.
I would add a rider saying you apologise for the firmness of tone but they have a duty of care and that involves discussing and negotiating with owners over matters related to common property.
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@Flame Tree said:
So, kill your current situation by a motion (if successfully voted in) then start again, with another motion (maybe/maybe not also at that agm – but do it when it’s good to go), or not.It makes sense, if you have already organised an EGM, to rescind the flawed motion and then immediately replace it with one that stands up. No point in delaying when everyone is on the same page and in the same place.
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Unless you building manager is either a mechanical engineer or an acoustic expert, they can’t say if the gate is functioning as it should. The fact that it opens and closes on demand is not enough.
The owners corporation has an almost unlimited duty to maintain and repair common property. With that in mind, I would do the following:
1. Contact the building manager and politely but firmly tell him/her that I wasn’t satisfied with their answer and I will be taking this to the strata committee or strata manager, with a view, if necessary of taking it to Fair Trading.
2. Do exactly that IN WRITING and if I didn’t get a positive response within two months, initiate Mediation at Fair Trading with a view to seeking orders at NCAT under Section 232(2) “Failure to exercise a function …”
3. In the meantime, gather as much evidence as possible, including a diary of how often and when this occurs, recordings of noise, statements from friends and neighbours and, if possible, an assessment from a gate installer or maintenance firm about the state of the equipment and the level of noise it is generating.
Your approach to the committee should say something like
Although the garage gate is functioning at a base level, it is seriously in need of a radical overhaul and/or replacement, as evidenced by the excessive noise and vibration experienced in my unit whenever it is operated.
As the Owners Corporation has a duty to maintain and repair common property, please advise me of any intention you have to carry out necessary work on the gate, when this will commence and who will be hired to undertake the work.
Please note that I reserve my rights to pursue this under Section 232 (2) of the Strata Schemes management Act 2015, if need be.
Send this to the committee secretary, the strata manager and the building manager and, while the two months are ticking down, start collecting your evidence.
By the way, if they come straight back with a negative response, you can go right ahead and start proceedings with the obligatory Mediation at Fair Trading.
Good luck
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@kaindub said:
In terms of the 5% rule, it is based on the number of unit entitlements. So the 5% is neither 2 proxies or 5 proxies, but 5% of the unit entitlements.Not by my understanding of the Act and Regulations. Section 26 (7) of Schedule 1 of the NSW strata Act refers only to the number of lots, not to the unit entitlements (see below). If you can find something that refers to unit entitlements and proxy votes, please pass it on.
What this effectively means is that in a scheme of 1-39 lots, you can carry one proxy vote (because 5% of 39 is 1.95 and you can’t have a fraction of a person).
With 40 to 59 lots, you can have two proxies; 60 to 79 you can have three etc etc.
However, you are correct in saying that the voting power of the proxies becomes critical in any poll vote.
Getting back to the question of car spaces, the issue is whether or not the car spaces have separate lot numbers and, as a result, get separate or separately calculated levies bills.
I am guessing the strata manager on their website is confusing lots with apartments because they want to give people a more accurate idea of the size of the building but don’t want to exclude, for instance, commercial lots.
Anyway, as Kaindub said, it’s what’s on the strata plan that’s significant, not what’s on the SM’s website, and it sounds like your car spaces are separate lots which should be counted as such.
I have encountered SMs who try to tell you that car spaces are “non-voting” lots but I can’t see any reference to non-voting lots in the Act.
I have two adjacent car spaces in my unit block, one is part of my lot (even though it’s 15 floors below me) but the other is a separate lot for which I pay a small amount of additional levies.
That separate lot gives me an extra vote in a show of hands at an AGM and slightly enhanced voting power in a poll vote.
One other question: can I, as the owner of two lots, carry additional proxies for the second lot, even though it’s only a car space? I had this discussion with Amanda Farmer of yourstrataproperty.com.au the other day and we agree that separate lots carry separate rights.
And likewise, as the effective owner of two lots, can I give both of my proxies to a proxy holder who’s reached their “cap”? The jury’s still out on that but I think the answer would be no I can’t – if they are separate lots then they should both be counted to the cap.
(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.
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OK, to be clear, you can’t just march into someone’s apartment and start fitting smoke alarms. The Owners Corp does have a right to enter, but when the resident refuses, this has to be established by orders from the Tribunal (NCAT).
This is also a slightly tricky issue because the Strata Act makes the Owners Corp responsible for the whole building (including the common property ceilings where smoke alarms must be fitted) but the NSW Environmental Planning and Assessment Act (EPAA) and Regulations say the home owner is responsible.
Section 186A (2) of the NSW Environmental Planning and Assessment Regulation (below) says home owners and owners corporation must fit smoke alarms, the latter to common property areas.
Probably the easiest way to get this done is to scare the recalcitrant owner straight by sending them a final demand that they must fit smoke alarms under the terms of the aforementioned Act and make them available for inspection by a certain date.
Failing that, you will report them to the relevant authorities, where they may be liable for a fine of $200 for each failure to fit smoke alarms – again under the terms of the regulations – although you might want to make sure you don’t get pinged for failure to make them do it.
I would also warn them that continued failure to fit smoke alarms will lead to you commencing proceedings at Fair Trading and NCAT to have orders imposed demanding that they do so.
If they then fail to do so, you will seek further orders allowing you to enter the premises to fit the smoke alarms at their expense AND financial penalties for failing to obey the initial orders.
Also, on the grounds that there is a clear and unequivocal legal requirement for them to do this, you will seek repayment of all legal costs incurred in pursuing this case at NCAT, which might well add up to several thousands of dollars.
Having said all that, if they still refuse, you might want to have a chat with an experienced strata lawyer.
NSW Environmental Planning and Assessment Regulation
Section 186A: Owners of existing buildings and dwellings must ensure smoke alarms are installed
(2) The owner of a class 1a building [includes apartment blocks] or relocatable home must ensure that the building or home is equipped with smoke alarms that are located, on or near the ceiling:
(a) in any storey of the building or home containing bedrooms—in every corridor or hallway associated with a bedroom, and if there is no such corridor or hallway associated with a bedroom, between that part of the building or home containing the bedroom and the remainder of the building or home, and
(b) in any other storey of the building not containing bedrooms.
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