[Jimmy-T]

If the by-law is already registered, the law will assume it was created in good faith until such times as it is challenged under the process available in the Act.

The ways to do that are through revoking the by-law at an general meeting or, more likely, given that the beneficiary is unlikely to agree, as required for changes to a common property rights by-law, by seeking orders under Sections 24 or 150 (below).

For a section 24 revocation, you would probably have to show that the by-law would not have passed were it not for the use of the invalid proxy vote.

For a section 150 order – probably a tougher call – you would have to show that the meeting was not entitled to pass the by-law or that the by-law was essentially  harsh or oppressive.

A simple challenge to the validity of the vote would have to have been made withing 28 days of the by-law being passed and even then you’d have to show that the invalid vote made a difference.

In short, NCAT is unlikely to revoke the by-law just because an invalid vote was used at the meeting. However, if the use of that vote made a significant difference, it might be worth challenging.

At this point, you might be well advised to have a chat with an experienced strata lawyer.

24 Order invalidating resolution of owners corporation
(1) The Tribunal may, on application by an owner or first mortgagee of a lot in a strata scheme, make an order invalidating any resolution of, or election held by, the persons present at a meeting of the owners corporation if the Tribunal considers that the provisions of this Act or the regulations have not been complied with in relation to the meeting.
(2) …
(3) The Tribunal may refuse to make an order under this section only if it considers:
(a) that the failure to comply with the provisions of this Act or the regulations, or of the Strata Schemes Development Act 2015, did not adversely affect any person, and
(b) that compliance with the provisions would not have resulted in a failure to pass the resolution or affected the result of the election.

150 Order invalidating by-law
(1) The Tribunal may, on the application of a person entitled to vote on the motion to make a by-law or the lessor of a leasehold strata scheme, make an order declaring a by-law to be invalid if the Tribunal considers that an owners corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive.
(2) The order, when recorded under section 246, has effect as if its terms were a by-law repealing the by-law declared invalid by the order (but subject to any relevant order made by a superior court).
(3) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order.

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[Jimmy-T]

I’m going to say this for the last time – you are spending more time criticising the only owners’ group that has had any result in the battle to halt unlimited STHLs than you are in criticising the government or the online holiday letting industry.

Is it really that smart to criticise a group that has the same fundamental aims as you – limiting the spread of short-term letting in residential buildings –  because they don’t favour exactly the same approach as you do?

The holiday letting lobby and the the politicians are rubbing their hands with glee at all this.  They can dismiss your group as outliers and extremists (and, trust me, in private they do) while they can claim with a degree of justification that OCN don’t even have the support of all the apartment owners.

United we stand, divided we fall.  We are falling but, thanks partly to the efforts of the OCN and My Strata My Choice, not as fast nor as far as we might have been.

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[Jimmy-T]

@Millie said:
All avenues have been pursued.  All avenues continue to be pursued.

So what was the response from the Ombudsman to allegations that the City of Sydney and other councils weren’t doing their job?

The position taken by ‘Millie’ and others with regards to short-term holiday rentals always refers back to legislation and the basis upon which Residents have purchased strata or property in R2 or R4 residential zones.  The position is based on legislation and consistent with that taken by the Accommodation Association of Australia.  

Fine – but it has achieved nothing in the big picture.  MPs and councillors have decided the laws are inconvenient and will change them.  Meanwhile, they will use the fact that they intend to change them as a reason for not enforcing them.

By way of contrast, Tourism Accommodation Australia’s position is (surprisingly) different; they are in partnership with Stayz/Expedia.  TAA is connected with the Australian Hotels Association (AHA), “the national voice of Australia’s hotel and liquor industry”.

I thought they had gone their separate ways a few months after they realised their aims were irreconcilably different.

By way of advice, ARAMA is hooking Expedia into big battle against any limits whatsoever on short-term letting in NSW.

No surprise there.  ARAMA has a much longer record in turning apartment blocks into holiday hotels than Airbnb.  Expedia just wants a foothold in the local market.

Members of the NSW Parliament never let up on how valuable short-term rentals are to our State Economy.  Minister Matt Kean refers repeatedly and only to a report volunteered by Airbnb.  State Parliament has written that they have not sought any legal advice…and they’re relying on figures from Airbnb? 

True.  So why do you imagine they aren’t interested in enforcing planning laws as they stand?  OCN didn’t create this situation – they dealt with it in an astonishingly effective way.  Again, we got the best outcome of any state in Australia.

And has anyone noted which MPs chose to abstain from voting on the Fair Trading Amendment Bill and indeed which MPs (with conflicts of interest) did indeed vote?

Go ahead – tell us.  I have no idea.  But MPs not voting isn’t always a sign that they don’t care – it’s often sending a message to their Party that they don’t have their wholehearted support.   

Our Members of Parliament must be called out on all the legislation they are ignoring, plus the fact that – particularly those in Strata – hold title deeds on residential property, plus there are Determination of Development Applications, which clearly state that our strata properties are for “permanent residential accommodation only and not for the purposes of a hotel, motel, serviced apartments tourist accommodation or the like“.  

You should never let “perfect” be the enemy of “good”. What you want – to turn back the clock to the black letter of planning laws – is unachievable IMHO.  Our Minister for Disappointment was within hours of announcing a no-limits allowance for short-term lets when he was pulled up by politicians in his own party who threatened a revolt if he didn’t include the strata by-laws provision promoted by OCN.

Think about it.  Only days before, his department was telling anyone daft enough to listen that by-laws restricting short-term lets would be invalid.  Now they’re to be the cornerstone of the proposed short-term letting legislation.

Our biggest battle right now is not to demand that the old laws be kept and enforced – that just won’t fly – but to ensure  the new ones aren’t undermined, diluted and eroded by Airbnb, Stayz and all their parasitic partners.

You are absolutely right about how we have been deprived of some of the rights we thought we’d bought with our properties.  However, you can send all the letters you want, but there are none so blind as those who will not see.

And just to be clear, the OCN isn’t your enemy just because they’re not standing on your barricade fighting your fight. 

And while what they have achieved isn’t going to help you in your situation – where a substantial majority of owners will vote against any by-laws – it offers hope to tens of thousands of us whose homes were about to be opened to unlimited numbers of tourists, despite the strong feelings of a majority of owners.

The war isn’t won yet.  You can bet that the STHL parasites will be working their butts off, trying to gee up the 25 percent votes needed to block the by-laws proposed for some of our key buildings.

Look out for a Fair Trading demand that all existing by-laws have to be put to another vote at a future AGM. They love Airbnb and will do whatever it takes to make life easier for them.

These are battles we should be fighting shoulder to shoulder and the OCN has proved they are the best people to lead the charge.

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[Jimmy-T]

@Millie said:
OCN were the first ones to suggest that a mere strata by-law should override the Certificates of Classification (National Construction Codes) and the Determination of Development Application on Residential Strata buildings.  Our Politicians, Airbnb & Mob have of course seized upon this.

Perhaps they have seized on the “all or nothing” approach by some campaigners to divide the anti-Airbnb lobby. Blaming OCN for not stopping Airbnb completely is like blaming Churchill for not defeating the USSR as well as the Nazis.

Airbnb is sweeping through Australia like a virus. NSW has achieved the very best outcome of all the states.  Had it not been for OCN, we would probably be looking at the same situation as Melbourne where there are no restrictions and Airbnb listings have gone through the roof.  The model Airbnb wanted us to have – their deal in Tasmania – has led to the government paying landlords to put their properties back in the residential market.

This is a political question that required a political answer.  It’s all very well to quote the law and insist that things should be done a certain way, but when your political leaders and local councils can’t wait to take the Airbnb dollar – and are scared of their campaigning power, black letter legal arguments count for nothing.

Queensland will be next to go down, even though its laws are absolutely unequivocal – Class 2 apartment blocks are “not for tourism”.  But they are being bulldozed too, with the supine local Press there toeing the line by presenting the people who want to abide by the law as obstructive and unfair.

The situation in your building is unique in that you have government MPs openly flouting planning laws.  Everybody now knows this.  Sydney City knows it.  The suddenly silent Labour Party knows it.  The deeply disappointing “no limits” Minister Kean certainly knows it.  But nobody wants to do anything because they are more interested in political expediency than legal issues.

In your shoes, rather than sniping at the one group that has stopped Airbnb in a way that no other has anywhere in Australia, you could perhaps be trying to build on that small but significant victory.

Personally I am amazed that no one has persuaded the Ombudsman’s office to do their job and order City of Sydney to do theirs. 

In Queensland, the Ombudsman ordered Brisbane City Council to enforce their planning regulations. With a clear-cut case like yours, I assume you tried that avenue.  Why didn’t it work?

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[Jimmy-T]

@mypersonalpa said:
Two Questions:

– in the interests of both Lot owners, would it be beneficial – to both – to have each of their “exclusive use” areas incorporated into each Lot? (A real estate agent commented the exclusive use areas could deter otherwise enthusiastic purchasers… not that either Lot is on the market currently.

Most real estate agents know as much about strata law as I know about making jam. If the exclusive use by-law has been properly formulated – meaning it can only be rescinded with the written permission of that lot owner (present and future) –  then there should be absolutely no impediment to the property’s sale.  However, if you absorb it into your lot, then you could have all sorts of issues from land tax, to stamp duty to council planning permission to deal with.  In other words, not worth the trouble for something that could be easily explained by a competent professional.  But check the by-law to make sure, just in case.  

– Secondly, can the owner of Lot 2 ask that “exclusive use” of the rear garden to be formalised? It is enjoyed, but not covered under existing exclusive use by laws, as the fencing occurred after the bylaws regarding other areas were created.  

If both owners want this, there is no reason not to pass a similar by-law to those currently in place (provided they are up to scratch).

This may be a good time to revise your special resolution by-laws – and that means rescinding the old ones and writing new ones – to make sure they are compliant with the new Act.  You’d certainly want to make sure that lot owners present and future were legally obliged to maintain the property to an acceptable standard.

A chat with a strata lawyer might be worth the cost of a call.

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[Jimmy-T]

I don’t know how you are going to get the other owners to join the committee when they won’t even come to the AGM.

One way might be to have some sort of social occasion but, to be honest, I don’t think “drinkies” will entice any more to come along.

Or you could manufacture a crisis … perhaps ask them to come to a meeting to discuss selling the block to a developer … or what are we going to do about Airbnb? … or drug dealers … or tenant representation.

Or you could have a meeting to explain how absent members can now participate by phone (your strata manager may help).

Actually, if the other apartments owners are investors, under the terms of section 33 of the Act (below) shouldn’t you have a tenant rep on your committee anyway?  That’ll throw a cat among the pigeons.

Combine a cheese and wine night with a crisis meeting and you might get a few more bodies on board

33 Tenant representatives
(1) This section applies to a strata scheme if there are tenants (being tenants notified in a tenancy notice given in accordance with this Act) for at least half of the number of lots in the scheme.
(2) The tenants of lots in a strata scheme (being tenants notified in a tenancy notice given in accordance with this Act) may nominate one tenant representative for the strata committee.
(3) The tenant representative on a strata committee, in that capacity:
(a) is not entitled to vote on decisions of the committee or to put a motion or nominate a person for office, and
(b) is not entitled to act as an officer of the owners corporation for committee purposes, and
(c) cannot be counted in determining whether there is a quorum of the committee.
(4) The strata committee, at any meeting or for the purpose of all meetings, may determine that a tenant representative is not entitled to be present when the following matters are being discussed or determined:
(a) financial statements and auditor’s reports,
(b) levying of contributions,
(c) recovery of unpaid contributions,
(d) a strata renewal proposal under Part 10 of the Strata Schemes Development Act 2015 or any related matter,
(e) any other financial matter specified by the regulations.
(5) The regulations may provide for the procedures for nomination of a tenant
representative, including the term for which a tenant representative is appointed, the notification of an appointment and the end of an appointment.

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[Jimmy-T]

@twosailram said:
Re minutes, the problem of having them changed before the meeting is copies of the minutes would have been distributed after the relevant meeting, and you cannot control accurate amendment of each copy issued.

This applies to strata committee minutes but the problem with AGM minutes is that not every scheme issues them until the next AGM, by definition, a year later, by which time any inaccuracies may not only have been forgotten but acted upon.

It might be better for schemes to adopt a protocol by which a draft of the AGM minutes is issued before the next committee meeting so that owners have a chance to dispute and discuss any that are felt to be inaccurate, with the AGM still able to vote on the final draft.

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[Jimmy-T]

@Libbylou said:
Thank you for giving me the opportunity to apologise to the Flat Chat community for my masquerade. 
I am so sorry everyone, I really am. I honestly didn’t mean to offend, or show any disrespect. Please forgive me?

Apology accepted.

I understand they felt deceived and disappointed. But they dobbed on me – which hurts a little – but I do understand they had no choice in the interests of maintaining the high standards of a professional forum.

The person you wrote to is one of our most highly regarded Stratagurus (that’s her official title) – one of only three trusted contributors who, for instance, get to approve other contributors’ posts.  She shouldn’t have to make moral decisions like having to “dob in” someone for anything but she felt her first loyalty, in this case,  was to the Forum and I applaud her for doing it.

… is it a little bit funny that you can have a fake name but not a fake identity?   

A fake name is just a form of identification so that we can recognise the participants in a discussion without needing to know their real names.  A fake identity is passing yourself of as something or someone that you’re not.

On reflection, this was pretty harmless – compared, for instance, to people in the past who have assumed several online identities then used them to gang up on posters with whom they disagreed. They were dealt with a lot more harshly than you.

It’s not the end of the world but it undermines the whole concept of a free and frank discussion if one participant is taking unfair advantage of the others’ trust. 

So, no, I’m afraid I don’t find it funny.  But lessons learned on all sides. 

I hope you can continue to enjoy the Forum and the website … as yourself.

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[Jimmy-T]

From the very first posting on this thread, I had a feeling something was amiss.  It was the phrasing of the questions and their intent that seemed a bit “off” but I put that down to someone being unfamiliar with the subject or, indeed, the whole business of posting on a website.

It seems, Flatchatters, that my first instincts were correct: we’ve been had. 

In a personal message last night, Libbylou admitted that she wasn’t the owner of the apartment with the exclusive use of the roof, but was in fact one of the other owners in the building, wanting to know if she should support or reject the proposals.

In her defence, there was no malice in her deception: she claims she merely wanted an independent and objective opinion.

However, why she would go to such elaborate lengths to deceive the Forum, its editors and readers is beyond me.  This wasn’t one question, it was a continuing thread based on a fundamental lie that expected all the people who volunteer their time and expertise to give an honest assessment.

Anonymity is one of the fundamental principles of this Forum because it allows all of you to ask your questions without any fear of retribution from the people involved in your disputes. 

I police that rigorously and even change the screen names of newcomers who haven’t bothered to read the instruction not to use their real name or, especially, email address as their screen name.

I believe the ability to ask questions in complete confidence is one of the reasons we have recently clicked over 22,000 posts in more than 5000 different topics.

In her message, Libbylou also raised the issue of whether our answers were biased in favour of the questioners.  I suppose what she was saying was, do we tell people what they want to hear?

The answer to that (as you can see from the previous discussion) is a resounding “no”. We endeavour to give people the best advice we can and, when the situation is complex and/or the stakes are high, we strongly recommend they seek professional legal advice.

But even lawyers are more likely to tell you how to achieve what you want, rather than just rattle off what the law says and let you work it out for yourself. If you want to ask a question and get a blunt recitation of the law (plus a potentially suspect interpretation) contact Fair Trading.

So if we are guilty of anything, it’s that we offer advice that helps readers to achieve their aims – or modify their ambitions – within the parameters of the law. 

We have even given advice to Airbnb hosts, even though that organisation has been encouraging people to breach their planning laws and by-laws and is, in my opinion, a greater threat to apartment communities than dodgy developers, incompetent managers and bad neighbours, all rolled into one.

I was sorely tempted to delete the preceding discussion but, regardless of its origin, it has a lot of good information that may be helpful to other Flatchatters in similar situations.

Meanwhile – protected by our policy of anonymity – only Libbylou knows who she is and if she (if she is, in fact, a she) wants to come on here and apologise to you all, I’ll be happy to let her. 

Otherwise, I think we’ve heard more than enough from that quarter.

By the way, if you are wondering about the security of this website, I have Libbylou’s real email address and IP address on file from her registration.  But I would never reveal either unless it was something much, much more serious than telling fibs and pretending to be someone you aren’t.

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[Jimmy-T]

@shedsrus said:
All that’s left to do now is manage the owner wanting to re-configure their balcony to enclose it and make it part of their bedroom. Anything I need to know there?

Firstly, this will require council planning approval because it is changing the floor plan of the apartment AND changing the external appearance of the block.  The Strata Committee’s response to the DA application is usually taken very seriously by the council.

Then there is your own internal machinations.  The Owners Corp is perfectly entitled to approve or deny applications to change the outward appearance of the building (council approval notwithstanding) and to decide whether it wants common property (the balcony) to be taken over in their way (ditto) and under what circumstances, such as written agreement by the lot owners to maintain and repair in perpetuity.

In other words – if your committee doesn’t want it, they can block it.  If they don’t mind, then they need to make sure all the special resolutions are in place to protect the Owners Corporation going forward.

BTW, your strata manager should be giving you all this information. If they aren’t, why are you employing them?

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[Jimmy-T]

Do you have a car space attached to the lot?

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[Jimmy-T]

Libbylou said:
… our apartment is 177 units, so a grand total of 459 units, so why does our unit entitlement sit at 244 units…? 

OK, I’m confused. Is your unit entitlement 177 or 244? In any case, unit entitlements are not calculated solely on the size of the total inhabitable area.

Also, if I’m reading this correctly, the roof doesn’t actually belong to you.  It’s still common property and you only have exclusive use of it.  It is not part of your lot and under certain, admittedly extreme and unlikely circumstances, could theoretically be resumed by the Owners Corp.

Even if your predecessor had bought the roof outright, I suspect, based on some of your other comments, that the other owners at the time might have decided it wasn’t worth the cost and hassle to adjust everyone’s unit entitlements.

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[Jimmy-T]

Almost certainly NOT common property – but it’s possible.  The easiest way to check is to ask a neighbour if they have it too.

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[Jimmy-T]

Yes, there are very good reasons for professional venues refusing 18th birthday parties – and maybe the level of costs, including insurances, has made the owner suggest this, potentially at the expense of the Owners Corp.

What happens when some kid puts the venue out on social media and a riot ensues? Has no one seen the TV news footage of what happens in suburban houses when parties get out of control?

Daddy has had 18 years to prepare for this … your building should not have a smidge of guilt about saying a very firm NO.

If I were Revolvo, I’d print these messages out and post them on their noticeboard.  And I would quietly tell the strata manager that if permission is granted, I’d be seeking an interim order at NCAT to prevent it – last minute or not. 

And as Scottie rightly points out, a wood-fired pizza oven in an enclosed car park?  Are these people insane?

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[Jimmy-T]

I think your owners corporation has to be very, very careful here if only because, regardless of what agreements they make with this owner, they (including you) will be responsible for whatever occurs on common property.

There is no mention of the number of people likely to be involved but you can assume it will be substantial.  How are they going to get out of the garage in the event of an emergency.  Will there be security? Will there be alcohol involved?  Presumably if there are disco lights there will be music?  How loud will it be?

I hate to be a party-pooper but your neighbours would have to be nuts to agree to this, especially at such short notice.  The potential for disaster is too great and you’ll be the ones who cop it if anything goes seriously wrong.

It’s a big thumbs down from me. 

Oh, and they would have to get the permission of every garage owner whose access will be restricted, regardless of what the majority of owners think.

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