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Put up a written proposal asking for a special resolution by-law allowing you to install an awning on common property, accepting the condition that you will maintain and repair the awning and the common property to which it is attached.
If they refuse, inform the strata manager (or committee, if you have one) that you plan to take action under section 232 (2) (below) for failure to exercise a function.
If they still say no, or don’t take steps to have the other awning removed, seek mediation then take them to NCAT.
Section 232 (2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if:
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
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You need to create a set of standing orders and a code of conduct have them adopted by by-law.
Have a look at these previous threads on Standing orders and Codes of Conduct.
Basically, you need to have either or both adopted as by-laws and then you can start hitting disruptive owners with “naming” in the minutes and Notices To Comply, leading to fines.
Just make sure that your by-laws aren’t worded in a way that makes them “harsh, unconscionable or oppressive.”
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You really want to avoid a situatuin whereby people who object to the levy lose their right to vote in future becasue they haven’t paid it.
I strongly recommend you seek an interim order at NCAT (under section 231) to hold the payment date until four weeks after the NCAT decision has been handed down or the result of an appeal is heard.
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@Steve said:
I needed help so I came here ro see if anyone else in government housing was as desperate as I have been. Now I see what is going on I understand why people can harm us without regret. I am gonna die here. Soon. So be happy.You are responding to a specific question asked and answered more than a year ago. We don’t discriminate against tenants or housing commission residents. We do discriminate against people who think they have the right to make their neighbours’ lives miserable because they have been dealt a crap hand in life.
I strongly recommend you direct your anger at those who are causing the problem, rather than those who don’t know what your problem is and therefore can’t offer any advice or assistance.
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@Ziggy said:
The SC keeps going back to the defeated motion and whatever I say or do has had no effect … I can’t win.Yes you can – as has been explained many times now, you can challenge the decision at NCAT.
There’s no point in angsting over who’s right or wrong. The law is quite clear – the owners corp can’t decide not to maintain the lift if it needs repair.
The next step is NCAT. There’s not much point in doing anything else until you have taken that step.
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First of all, your heading on this was (until I edited it) almost as long as your question. Please don’t do that. It screws up the layout on the page.
Secondly, yes they are passing on a kind of proxy but it doesn’t count towards the quorum and it has to be accepted by a majority of the owners present at the meeting to be allowed as a vote.
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@Ziggy said:
Regardless of the defeat, is the OC still obligated to fix a dangerous, noisy unreliable lift?We seem to be going round in circles on this and it really could not be simpler.
Under section 106 of the Act (below), the owners corporation has a duty to “properly maintain and keep in a state of good and serviceable repair the common property … “
That duty remains regardless of whether it has the funds or inclination to do so.
The OC can decide by special resolution (only) not to not to do so provided “it is inappropriate to maintain, renew, replace or repair the property” AND “its decision will not affect the safety of any building, structure or common property in the strata scheme.”
You have enough ammunition right there to get orders from NCAT under section 106. You have already had the mediation. I think it’s time to get on with it. The decision of the owners corp to do nothing has no standing in this regard.
The law was designed precisely for situations such as yours. I suggest you use it. Costs etc are not an issue at this stage so don’t even go there. The simple fact remains that the Owners can decide to do nothing if they want, but that doesn’t alter their statutory obligations.
106 Duty of owners corporation to maintain and repair property(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
(3) This section does not apply to a particular item of property if the owners corporation determines by special resolution that:
(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.
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In the absence of a by-law, this is now common property. The Owners Corp can remove the A/C unit and repair common property at their (the OC’s) own expense.
Alternatively, if the lot owner wants it repaired the the OC doesn’t have any fundamental objection, they can allow the lot owner to do so provided they agree to a special resolution by-law giving them ongoing responsibility for its upkeep.
The one thing that should not happen is that the lot owner gets the a/c repaired or replaced at OC expense.
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The critical issue is whether you think there is a by-law that’s applicable to the two motions (because the allegedly breaching owners have to have something to comply with).
If there is a by-law and you think the owners are not in breach, it would be much safer to say so at a meeting but take a vote to confirm that.
If the owners are technically in breach of a by-law but the by-law doesn’t make much sense, then you should attempt to amend the by-law at a general meeting and then call on the committee to defer the NtC until such times as that has been done (or not).
But taking it upon yourself to reject motions because you think nobody agrees with them is dangerous territory and can only lead to prolonged strife in your strata scheme.
One way round this would be to get one-third of owners to sign a petition to you before the meeting, saying they are against the NtC motion.
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@annmb said:
I don’t want to get into too much detail.And that’s exactly whee the devil lies. Google “strata lawyers Brisbane” and you will be presented with a variety of options, many of whom have customer reviews attached.
Oh, and the thing to do with online reviews is to ignore the best one (probably written by someone in the company) and the worst (most likely written by a rival) and average out the rest.
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@reddant said:
So being present exparte should mean when you acknowledge you received the SC meeting notice, voting instructions and notice of deadline.Nope. It just means that you have to notify the chair that you will be “attending” the meeting by other mens and hat you intend to vote.
Schedule 2, Section 12 (3) of the 2015 Act says this:
(3) A person who has voted, or intends to vote, on a motion or at an election at a meeting by a permitted means other than a vote in person is taken to be present for the purposes of determining whether there is a quorum.
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@scotlandx said:
Where you introduce a by-law that applies to something that is already there, the current owner has to specifically consent to it.But, and please correct me if I’m wrong, if they won’t consent, you can tell them to get it off common property. Right?
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It’s quite clear that no one is going to do anything until they are compelled to. The lift engineer is probably not a strata law expert. The processes required to compel the owners corp to fix the lift have been explained already. You have already had mediation so now go to NCAT for orders.
You don’t need a lawyer to proceed but you should probably talk to one. There really isn’t much more to be said. Although, perhaps you should think about a strata loan to cover the costs.
By the way, if the inevitable accident happens, the whole owners corp, you included, will be culpable. I wonder if your insurance covers you and your neighbours for willful negligence.
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This is a massive area of non-compliance in strata – especially considering its implications for management and representation in strata blocks.
My contacts in the strata management industry tell me that about 60-70 percent of rental agents notify the Owners Corp of a new tenant when they first let a property and about 30 percent of private landlords.
These figures soon drop to 30 percent and less than 10 percent respectively as they neglect to keep the committee informed of changes to tenancies. I’d take those figures as anecdotal and they vary from building to building but they do indicate the existence of a culture of non-compliance.
The irony is that it is one of the very few areas of strata law that actually carries a penalty ($550 max – see Section 258 below).
It is also one of the reasons that there are very few if any apartment block strata committees that have tenant representatives. Given that more than 50 percent of apartment residents are renters, and in some buildings that’s as high as 80 or 90 percent, they should easily pass the 50 percent threshhold that triggers the election of a tenants rep.
But that would require all the tenants to be registered with the Owners Corp and they’re not. Section 258 presents an opportunity for strata committees to get a grip on who is living in their building, make some money (the fines would be paid to the Owners Corp) and even use it to curb illegal short-term rentals.
But in one of those “be careful what you wish for” scenarios so common in strata, they might find themselves with a tenant rep on their committee which, as we all agree, would mean the end of civilisation as we know it.
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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