Forum Replies Created
-
Replies
-
@dingo said:
I think its best to let Beth99 decide for herself which road she takes dont you think?I think offering Beth99 the information required to pursue a course of action does exactly that.
What you did was to point her to an extreme case that implied that she could expect years of personal abuse and massive financial risk by pursuing her rights.
Now, I’m going to shut this discussion down because you’ve had your say and that’s fine, you are entitled to your opinion.
But if you think we should be warning everyone who wants to sort out relatively minor problems that they could be headed for disaster, I think you might be spending your time on the wrong website.
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.
@dingo said:
The owners are obliged to maintain common property but that doesn’t necessarily mean they have to replace or upgrade the common property lift.It does if that’s the only way to have a lift that’s reliable and safe – at the very least they need to ascertain whether or not they need to spend some money on repairs or refurbishment.
If you look at section 106 (below) it quite clearly states that the Owners Corp has a duty to maintain and repair common property and can only decide not to do so if that doesn’t affect the safety or appearance of the common property. I would think a lift that’s noisy and unreliable has problems that are more than cosmetic.
It’s also worth pointing them in the direction of paragraph 5 – if any owner loses money due to a cranky old lift, (for instance through reduced sales price or lost rent) the Owners Corp could be liable.
Do you know if the strata would have the funds to do this? This may be a key factor as to why they don’t want to, even though it may seem logical to replace it.
I’d bet my house on it being the lack of accumulated funds that makes them reluctant to spend money now. This is a common result in a building where the owners have let things go to rack and ruin rather than spend a cent more than they have to on levies. But it doesn’t change their responsibility one iota. If the work needs to be done, then they need to find the money, by whatever means they can, be it special levies or a loan.
There seems to be a clear option here to pursue NCAT orders under section 232 to compel the Owners to fulfill their legal responsibilities.
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.
(4) If an owners corporation has taken action against an owner or other person in respect of damage to the common property, it may defer compliance with subsection (1) or (2) in relation to the damage to the property until the completion of the action if the failure to comply will not affect the safety of any building, structure or common property in the strata scheme.
(5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.
(6) An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss.
(7) This section is subject to the provisions of any common property memorandum adopted by the by-laws for the strata scheme under this Division, any common property rights by-law or any by-law made under section 108.
(8) This section does not affect any duty or right of the owners corporation under any other law.
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.
@dingo said:
Not everybody wishes to get involved to that extent. There is no malice intended in that.Nobody said anything about malice* but people come to this website looking for information and, sometimes, encouragement. Pointing out a worst-case scenario as if that’s what they can expect is misleading and unhelpful.
People get run over crossing the road every day; would you advise pedestrians not to cross the road?
I accept your intentions were good but we really have to lay-off all the horror stories every time someone asks a question.
Plenty of people have followed our advice and had good outcomes, maybe you would care to dig out some of those, just for balance.
*Correction, I did: “Never ascribe to malice anything that can just as easily be explained by stupidity.” In my defence, I was referring to the failure of OCs and SCs to act – not to Dingo’s comments. – JT
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.
@dingo said:
In reality the process for enforcing by-laws is not as simple as many people would like it to be – here is an example;That may be true but the examples quoted are very specific and by no means usual or common.
Working on the basis that you should never ascribe to malice anything that can just as easily be attributed to stupidity, the same people who don’t enforce by-laws often do so because they don’t know a) that they can and b) how to do it.
Oh, and let’s not forget c) “What by-laws?”
There are many ways to get have by-laws enforce.
The first is to raise the issue by a motion to the strata committee asking for a Notice To Comply to be issued.
The second is to raise the issue yourself at Fair Trading, asking for a mediation (now free) as an obligatory precursor to seeking orders at NCAT.
The third is to seek mediation at Fair Trading as a precursor to taking your strata committee to NCAT to seek orders under section 232 requiring them to fulfill their responsibilities as the committee of the Owners Corporation.
The last one is quite interesting as it might scare the committee into actually doing something.
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.
@giggsy11 said:
Everyone is happy with this solution but the Chairperson of the OC continues to ask me why I didn’t seek approval way back in 2005.Was there a by-law requiring you to do that. If not, I would just say that you, like 90 per cent of strata owners in NSW, didn’t realise you were supposed to as you didn’t think it affected anyone else.
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.
The Act clearly allows for secret ballots for the election of committee members at an AGM. Not sure if it covers the “selection” of office-bearers. I suspect not.
29 SECRET BALLOTS
(1) Voting on a motion or for an election at a meeting may be carried out by a secret ballot if:
(a) the strata committee determines that the motion or matter is to be so determined, or
(b) at least one-quarter of the persons entitled to vote on the motion or election agree that the motion or matter is to be so determined.
(2) The regulations may make provision for or with respect to the procedures for a secret ballot.
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.
You can take action against the Owners Corp (not the committee, necessarily) for failure to exercise its duties under the Act. First, arrange mediation anat which you would ask the OC representative to agree to a time frame for seeking quotes and commencing work on the lift.
Regardless of the outcome, if nothing happened, you would then take action at NCAT. I think Section 232 (1)(e) would cover it.
And no, you wouldn’t have to resign but your fellow committee members may try to get you voted off at the next AGM. However, you could argue that the committee and individual members could be considered personally negligent and liable if the lift stopped working or there was an accident.
NCAT should issue orders requiring the committee to organise repairs within a certain time frame.
232 Orders to settle disputes or rectify complaints
(1) Orders relating to complaints and disputes
The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following:
(e) an exercise of, or failure to exercise, a function conferred or imposed by or
under this Act or the by-laws of a strata scheme,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.
@Beth99 said:
As in nominated by one person and seconded by another who are not standing for the position ?There is no seconder required for a strata committee election. All that’s required is that the person making the nomination is:
a) not standing for election themselves
b) not nominating more than one person
c) ‘financial’ at the time of the meeting
d) if they nominated themselves, they are not co-owners of their unitIf any member of the committee fails on any of these, they should stand down immediately (although the committee can just reappoint them). At least their incompetence and lack of knowledge of basic strata law would be exposed.
I will look into the issue of secret ballots for strata committee office-bearer roles later.
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:
I am a bit confused about what your concerns are …Is the secret ballot vote for committee members a secret ballot at a general meeting?
Is the secret ballot vote a vote for general positions (and specific positions are decided at the committee meeting immediately following the general meeting) or is the secret ballot vote for specific positions at the general meeting?
Can you provide an example of the Motion where a secret ballot was called for?
I am also confused. Is the objection that a) a secret ballot was called or b) the result was kept secret?
If a) then you have to make sure everyone who voted was entitled to vote (this doesn’t affect the secrecy as you don’t know how they voted). You also need to check that they were validly nominated (e.g. NOT by someone who was also standing for election). These records have to be kept by the owners corp so it should be easy to check (if you force them to show you).
If b) you are entitled to know who was elected and who they then chose as officers of the committee. That should be in the minutes of the AGM and the minutes of every strata committee meeting thereafter.
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.
@Whoopi said:
Honorariums are usually retrospective he has been getting it for so many years no one knows.
If they are genuinely retrospective – voted at the AGM for the previous year – then they aren’t illegal. But you could argue that the recurring nature of them, allied to his expectation that he will get one every year, puts them into a grey area and for clarity’s sake, you should not have one at the next AGM.
If he blows up and demands one, it proves your point. It also gives you a chance to show how much money his decisions have cost owners, by way of a motion to the AGM (with explanatory notes that they must send to owners for the agenda to be valid).
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.
@Whoopi said:
The owners were not notified that committee member did not attend. Plus he is paid an enormous honorarium.If the payment is agreed in advance, he and the committee are breaking the law.
You are not even allowed to report to owners what happened in mediation as it is all confidential. This makes no sense at all to me.
Are you sure? The owners are party to the mediation (as members of the Owners Corporation) so they are entitled to be told. And even if they weren’t, what’s going to happen? Off to strata prison with you!?! Seriously, if the other side refuses to play by the rules, why would you feel the need to follow them in such minute detail?
… the committee were able to control the information that filtered back.
So find a way of letting the owners know. It takes about $25 to set up a website and $1 a unit to send postcards directing people to it (nothing if you have their email addresses).
I am amazed at how many unhappy strata bunnies are out there. I have worried about you since your private message and think about you a lot. Hang in there Ziggy…… Call Four Corners !!!!! Insight !!!!! Would love to see my committee chased down the road by Current Affair !!!
Having been on several TV news magazine items about strata, I can tell you they usually don’t get it. I did a thing for Helen Wellings on Seven about “forced sales” legislation – the promo for the item was headlined “Strata Body Corporates out of control!”
Why? Because the 12-year-olds in the promo department assumed that’s what it must be about. They don’t know and, more to the point, (apart from Ms Wellings) they don’t care.
You have all the ammunition you need to take your strata committee members to NCAT and you have already had the mediation. So apply to NCAT and
a) ask for them to be removed from the committee
b) order them to pay back the honorarium
c) order the committee to do the things they should have been doing.
In the meantime, it has never been easier to get your message out to your fellow owners – don’t wait for a TV show to do it for you because, apart from the unlikelihood of them doing it in the first place, their agenda may be very different from yours.
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.
@pielover said:
If the answer to this question too is yes, than, in my opinion, the occupation of the premises is consistent with that of a dwelling.I’m sorry – what’s your point? The case you highlighted was one that established that a house used exclusively for holiday rentals was not technically a dwelling.
OK. But the point of all this is that we know planning laws and zoning are being breached but the only people who can do anything about it – the councils – are doing nothing and the only people who want to do something about it – strata owners – are being prevented from doing so.
That’s it. Whatever legal definitions you come up with, our hands are tied while councils’ hand have their big fat bums on theirs.
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.
pielover said
(4) An owner or occupier of a lot must ensure that the lot is not used for any commercial purpose that involves the lot being used by its occupants on a short-term basis for less than thirty (30) days.May I suggest that the above clause could imply that, as it is ambiguous and pertains to any ‘occupant’.
The Member (like various authorities across Australia) found that letting a unit on Airbnb wasn’t “commercial” so I doubt very much if allowing friends and family to stay there would fall under that clause, even if they were paying something for the privilege. And yes, I would have a friends and family exclusion in the law (not a by-law).
Shouldn’t a by-law be unquestionably unambiguous, clear, concise, self-contained and not open to differing interpretations at the whim of the SC?
Absolutely and that’s one of the many areas in which this one fails
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.
Couldn’t agree more, Lady P. The by-law is a mish-mash trying to cover too many bases and ends up covering none. I would have been very comfortable with the Member rejecting it because of its content rather than its intent.
So what next. Is there a by-law out there that’s bullet-proof?
Or do we have to think about owners from a number of buildings suing their local councils in a class action for not enforcing their own laws?
Hmmm … now there’s a thought.
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.
@pielover said:
Jimmy,So, how did you come to receive a copy of the by-law as it wasn’t included in the tribunal determination/summary ?
I never reveal my sources.
Also, is the by-law worded in such a way that it also prevents family/friends from ever staying there for less than 30days ? ie. both paid or unpaid would be prohibited.
I can’t see where it says or implies that.
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.