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Under Strata Regulation 41 (2) the records of secret ballots only have to be retained for 13 months, rather than seven years.
However, to allay the fears of your owners, why not pass a by-law that says that, after the proxy forms in a secret ballot have been verified (possibly by an independent returning officer), their validity and value in unit entitlements recorded and their proxy holders noted, they will be placed in a sealed envelope which may only be opened subject to an order from NCAT.
You could then promote this idea to your owners in a very positive way.
I’m not sure if this would even need a by-law since you aren’t changing anything except what happens to the votes when they have been checked and verified.
So the motion might go something like:
Under the terms of the Strata Schemes Management Act 2015, Schedule 1, Clause 29 and the Strata Schemes Regulations 2016, Section 41 (2) and with due regard to the SSMA 2015, Section 180, the Owners Corporation agrees that, in the case of a secret ballot:
1. The committee will appoint an independent “Returning Officer”*
2. The Returning Officer will retain all proxy forms and ballots, verify them and record the Unit Entitlements attached to each vote while protecting the privacy and identity of the voting owners.
3. When the votes and proxies have been verified and allocated the proxies and votes will be placed an a sealed envelope.
4. The envelope will be stored in a secure place and will only be opened under the instruction of NCAT or a higher court, if ordered to, in the unlikely event of a challenge to the validity of the vote or election concerned.
*This will be a strata committee member from another scheme, or a strata professional, or a lawyer or JP or similar, who has no fiduciary or personal connection with the scheme.
Something like that could be passed by your committee then be promoted to owners under a “good news” newsletter headlined “Protecting Your Privacy”.
What do other Flatchatters think?
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@Casuarina said:
Geez, JimmyT. This question is not about solar systems … it is simply whether a new by-law can be proposed at an AGM without having been first recommended by an Executive Committee.The opening line of your first post:
“I am the secretary of our Owners Corp and wish to introduce a new by-law allowing the EC to approve exclusive use of the roof and other areas for solar panels etc.”I haven’t read sections 142-144 of the Act but … surely that is satisfied by the unanimous carriage of a motion at an AGM which is then properly recorded in the minutes circulated to all owners?
Why would you think that without reading the Act? I can’t make it any easier for you. Just click on the link provided in my previous post Oh, and your assumption is wrong. The owners affected have to agree to the by-laws in writing.
So, once again: Is it necessary for the EC to propose a change in by-laws or can the Secretary (or any other owner) put forward a draft resolution to be added to the next AGM agenda?
And if this is OK, what is the notice period for having a draft resolution included in the AGM agenda?
Anyone can propose anything at an AGM. The law only requires you to have to have the motions in before the agenda is issued. Common sense dictates that you would allow five working days for the agenda and other papers to be complied for the AGM.
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Whoever hired the cleaners or other contractors and gave them the keys should be responsible for getting them back.
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If you haven’t already done so, you need to look at sections 142 -144 of the Act which, among other things, require the owners who are the beneficiaries of common property rights by-laws to agree in writing to their creation.
You should also take a close look at the responsibilities for repair and maintenance of the solar panels and the roof where they are installed. For instance, you might want the owners corp to retain responsibility for the roof but the individual owners to have responsibility for their solar panels.
Or you could have the OC install the entire array and find a way of charging owners for electricity they use.
To be honest, I think you should be presenting a motion that empowers you to go ahead and draw up the by-laws, once you have established what the majority of owners want, then present them at an EGM held at a later date specifically for that purpose.
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Just to confirm, are you doing this so the owners corp can put solar on the roof or so that individual owners can do it?
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Does the owners corporation require a by-law to install something on its own property?
I think you may be setting the bar a little high for yourself there as a by-law requires a 75 per cent vote but a simple resolution only needs a simple majority.
Just put it in as an agenda item that the committee investigates the options, with a due date for reporting back (or it may well be stalled).
If you get your motion in on time, then it has to be discussed and voted on at the AGM.
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Sounds like there’s some nifty footwork going on there by people who want something that they aren’t entitled to for free.Common property belongs to all the owners in the building. Allowing one person to use it takes it away from everyone else.Sections 112 and 113 of the Act (below) allow the Owners Corp to allocate exclusive use of common property to owners and charge them for it. These sections of the law wouldn’t be there if they just had to hand over common property to whoever wanted it.Subject to DA approval of your local council (and that’s not guaranteed) you could go through the rigmarole of creating parking spaces and selling them to owners but that is way too complicated, mainly because it involves recalculating unit entitlements.If there is a genuine demand and need for the parking spots, and the council will allow it, the OC should build them and then lease them to owners in a fair and equitable way for extended periods, attached to the ownership of the lot, for fees that take into account the costs of planning and building them.You can work this out in advance and say, OK, you can get a car space but it will cost X amount a year for 10 years and you or whoever owns your lot will have first refusal to renew. If they don’t want to pay, they don’t get a car space. That’s how it works.112 Owners corporation may grant licence to use common property(1) An owners corporation may grant a licence to an owner or occupier of a lot in the strata scheme or another person to use common property in a particular manner or for particular purposes if the owners corporation has approved the granting of the licence by a special resolution.(2) A licence may be granted subject to terms and conditions.
Note. Division 3 of Part 7 enables owners corporations to make common property rights by-laws granting exclusive use rights and special privileges (including licences) in relation to common property.(3) Without limiting this section, a licence may be granted under an agreement with the local council for a strata parking area under section 650A of the Local Government Act 1993.
113 Agreement for payment to owner of consideration on transfer or lease of common propertyAn owners corporation may, in accordance with a special resolution, make an agreement with an owner for the payment to the owner of:
(a) the whole or any part of the consideration under any transaction proposed to be entered into by the owners corporation under Division 6 of Part 2 of the Strata Schemes Development Act 2015, or
(b) any money payable to the owners corporation under a common property rights by-law.
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No. It’s not a change of use in any legal or planning sense.
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You don’t need anyone else’s permission to use your apartment but you have to think of the impact on your neighbours and on common property.
Having worked in TV myself, I can tell you that the producer and crew are focussed on one basic thing, getting the show made as efficiently as possible both in terms of cost and the quality of the end product.
Your relationship with your neighbours is not very high on their list of priorities – unless it’s likely to impact on the show (hammer drills, vacuum cleaners and loud music going off whenever the director calls “action!”, for instance).
You might also need their OK on parking of trucks etc.
In your position, I would inform the neighbours as a courtesy in the first instance and ask them if they have any concerns. I would then talk to the producers about minimising the impact of the production on the rest of the building.
For instance, if they can arrange to “bump in” and “bump out” all their equipment in the minimum number of trips, rather than having a constant stream of crew members going back and forth to the trucks, that will help you a lot.
And maybe a small financial consideration to the OC would smooth things over too. In short, it’s possible to minimise the impact to a certain extent and otherwise compensate for the disruption.
But when the circus has rolled out of town, you will still want to be able to get on with your neighbours so tell them what you are doing and how you are planning to minimise the disruption to their lives and all should be sweet.
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If you now have the required 75 per cent vote, you only need to rescind registered by-laws.
In any case, my understanding is that the current model by-laws apply by default in any cases where there is no specific by-law covering that particular issue.
For instance, if you had no by-law governing the parking of cars on common property, then the Schedule 3, By-law 1 would apply.
If you don’t have the votes to rescind and replace the by-laws I would ask your strata manager about seeking a orders under Section 148 of the Act to rescind the original by-laws and replace them with the model by-laws.
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@daveL said:
My understanding is that the body corporate cannot install work like this in the airspace of the lot, given that it is the property of the lot. Am I correct?
I’d be interested to see where you have read that as I’m not sure it’s true. For instance, the automatic door closure on the inside of your front door is attached to common property by intrudes into lot air space.
in any case, if the balcony is common property then so is the air space above it.
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This was a hotly debated issue before the last change to our strata laws.
The commission was about to be wiped until it was pointed out by some of the small “mum and dad” strata management companies that, without the commission, they would go under.
It’s not just a a case of them having a bad business model – the strata managers based in your local real estate office (for instance) service small local strata schemes in a way that the big companies can’t or won’t, for the simple reason that small schemes require almost as much work as large ones but the strata manager charges on a basis of a fee per unit per annum.
Some of the larger companies don’t take the commission or declare it as a contribution to reduced fees.
The insurers argue that having a middle person – a strata manager or an insurance broker – means they don’t have to “train” the strata committee every time they want to make a claim. That’s why if you negotiate the premium yourself, you don’t get the trailing commission refunded to you.
It sounds as dodgy as hell, but it kind of works.
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