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@supersleuth said:
I wish to place a motion on our upcoming AGM for the removal of our strata committee. I understand that this needs to be done by a special resolution.You don’t need a special resolution at an AGM. The strata committee’s term ends at the AGM and a new one has to be elected.
Now, we know that in practice this often means the same people stand year after year and use their privileged access to internal communications to make sure no one else gets a look-in.
But there will be a motion on the agenda to decide the number of seats on the committee and another calling for nominations.
What you need to do is make sure that you have enough support before the meeting to make sure you and your alternatives get elected.
You should also be prepared to challenge all other nominations if you believe they are not valid, for instance, if the people nominating them are not up to date with their levies, or if co-owners are self-nominating, or if one owner is nominating more than one person.
Some quiet preparation should catch the incumbents on the wrong foot but you need to read up on the Strata Schemes Management Act 2015 (just Google it) and be prepared to quote chapter and verse if need be.
The good news is that because you don’t need a special resolution, just a simple majority will get you over the line.
However, if you want to raise the competence of the committee through a motion of at the AGM, keep it fact-based and not about personalities. Propose a “please explain” motion (e.g. Why are we paying so much for cleaning when the lobbies are filthy? or Review the contracts with our cleaners to ensure we get better service and improved value for money).
That will allow you to open up all the issues that have led you to wanting to sack your executive committee.
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I agree. It’s not something I would recommend but there are cases, especially where committees are brand new or recovering from years of proxy harvesting, where it can help to get past the initial stages
That said, a strata manager can attend meetings and offer advice without having to be a member of the committee.
However, I would advise anyone who’s been told that the strata manager being on the committee is standard practice, to run a mile … and get another SM.
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@Cat2017 said:
And if needed, I can’t stop the other two owners from putting any special by-law up, as they have the majority vote on everything.They may have a majority but they can’t create by-laws unless the have 75 percent of Unit Entitlements. Two-thirds of the vote is not enough to pass by-laws if the other third objects.
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@Cat2017 said:
We called Fair Trading on this regard, were told by installing window grills, is for safety device, can be installed, however, as this is to common property, still subject to Strata’s approval… Appreciate your explanation. Many thanks!
Have a look at Section 2 – it still has to be in keeping with the appearance of the building – and that’s where the other owners can be obstructive.
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@pielover said:
Who wants to go thru the rigmarole of going to the NCAT just ‘as a test case’? (By-laws should not be in place just so the committee can use them as a means to beat owners about the head and ‘threaten’ them with legal action/a fine )By-laws work on a number of levels:
Firstly they are a guide to to owners as to what they should and shouldn’t be doing.
Then they are a deterrent and a valuable tool to pull owners and tenants into line (via a Notice To Comply) when they decided to do was they please.
Finally they allow OCs to punish the miscreants through fines for ignoring the NTC, and it is only then that their validity is tested. Unless an owner goes out of their way to prove a point, that’s a long road and a lot of compliance before you even find out if the by-law is valid.
Or put this another way, even a badly written and invalid by-law would have the effect of letting residents know what the majority of owners found unacceptable and it might never be tested at the Tribunal.
And on that note, I think we have covered this topic to death.
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@scotlandx said:
The Strata Manager can’t be a member of the Committee, and even if he/she attended and acted as Chairman (which they can do) that would make no difference to the quorum.Hey, Scottie, welcome back. Are you sure about that. I think I have made the same mistake myself before. Rental agents and building managers (caretakers) who aren’t owners can’t be but I think strata managers can. Could be wrong, though.
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@pielover said:
Yes, but the 1st step is to ensure you have a ‘valid’ by-law to start with. The main issue at hand is the length of stay ie. a few days or a few months.You have already answered your question in an earlier post (No10) in which you quoted Fair Trading: “The only way short-term letting can be restricted is by council planning regulations.”
If your strata scheme is zoned residential only and your council defines residential as 90 days minimum, than that is all your by-law can be based on. You can’t make up your own figures that are even less restrictive than the council’s because your strata scheme doesn’t have the legal authority to do that.
As for making sure your by-law is valid, you would surely go to your strata manager or a strata lawyer and ask their advice, wouldn’t you?
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This is what the current law says:
118 Window safety devices-child safety
(1) An owners corporation for a strata scheme to which this section applies must ensure that there are complying window safety devices for all windows of each building in the strata scheme that are windows to which this section applies.
Maximum penalty: 5 penalty units.
(2) An owners corporation is to carry out work related to its functions under this section at its own expense and may, for the purposes of this section, carry out work on any part of the parcel.
(3) An owner of a lot in a strata scheme to which this section applies may install a complying window safety device on a window to which this section applies (other than a window on another owner’s lot).
(4) An owner of a lot who installs a window safety device under this section must:
(a) repair any damage caused to any part of the common property by the installation of the device, and
(b) ensure that the device is installed in a competent and proper manner and has an appearance, after it has been installed, in keeping with the appearance of the building.
(5) An owners corporation or an owner of a lot may carry out work authorised by this section despite any other provision of this Act, the regulations or any by-law of the scheme.
(6) The regulations may make provision for or with respect to the following:
(a) the strata schemes and windows to which this section applies,
(b) the devices or other things that are complying window safety devices for the purposes of this section,
(c) notification to the owners corporation by owners who install window safety devices.
(7) A regulation may apply this section to a window located on any part of a parcel.
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@pielover said:
Why should it be a case that someone has to take it to the NCAT to ‘see what happens…’ ?How else are you going to get a resolution? You create by-laws and then “breach” residents for ignoring them. But the only way you can impose fines for breaches is through the Tribunal. Just because the law says something, it doesn’t mean people will obey it. There are no StrataKops.
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@pielover said:
I thought the RTA was explicitly ‘3 months or more’ ?I can’t find any reference to “three months or more.” However, the minimum notice a landlord can give to terminate a fixed term lease is 30 days so that, by default, establishes that 30 days is the minimum term of a residential let (in the absence of any other legal definition).
If anyone else can find a legally enforceable definition of residential as being a certain number of days, please post the link here. I’d rather be proved wrong if it means we get the right information.
Any Sydney councils LEP state 3 months (as I have not seen any)?
I am going by a City of Sydney Development Approval for a high-rise near me which specifies residential lets as being for no less than three months. Other councils may have different definitions.
RESTRICTION ON RESIDENTIAL DEVELOPMENT
The following restriction applies to buildings approved for residential use:
(a) The accommodation portion of the building must be used as
permanent residential accommodation only and not for the purpose of a
hotel, motel, serviced apartments, private hotel, boarding house, tourist
accommodation or the like, other than in accordance with the Sydney
Local Environmental Plan 2012.
(b) A restrictive covenant is to be registered on the title of the development
site in the above terms and restricting any change of use of those levels
from residential accommodation as defined in Sydney Local
Environmental Plan 2012. The covenant is to be registered on title prior to
an Occupation Certificate being issued or the use commencing, whichever
is earlier, to the satisfaction of the Council. All costs of the preparation and
registration of all associated documentation are to be borne by the
applicant.
(c) If a unit contains tenants, it must be subject to a residential tenancy
agreement for a term of at least three months.
(d) No person can advertise or organise the use of residential apartments
approved under this consent for short term accommodation or share
accommodation.If a council LEP doesn’t, does it ‘default’ to the RTA ?
In the absence of any other specific definition, the RTA minimum is all you have.
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Lady Penelope said:
An OC would probably have more success legally with ‘regulating’ rather than ‘prohibiting’ short term holiday letting, as is explained in the legal commentary below.I can see where you are coming from but I know David Bannerman pretty well and he generally takes a fairly conservative view on these things. Other lawyers have less pessimistic opinions. The main thing is, until a by-law is tested in a higher court we have to remember that any lawyer’s view is just an opinion and not a definitive ruling.
However, the same law that prevents by-laws from interfering with “dealing” would probably stop you from directly regulating short-term lets.
The only reliable avenue is if your council has zoned your building as “residential only” and then defines what residential means. You can then pass a by-law that says you will enforce your zoning – that way you have not tried to supersede a superior law, you have simply agreed to support it.
Some commentary from Bannermans Lawyers about short term letting in strata which may be helpful is outlined here:
Attempting to persuade the local Council to enforce planning laws can be a useful avenue, but this is dependent on the relevant planning laws and a motivated council. In many cases, individuals can bring their own actions to enforce planning laws, but this can be cost prohibitive, suggesting the need for council to be the driving force.
Yes, but many councils (such as City of Sydney) have decided not to pursue enforcement of their own zoning (at least until after the government passes its short term letting laws).
That doesn’t stop owners from passing by-laws in support of existing zoning, and enforcing them. You could be a long time waiting for your local council to act if they have neither the will nor the resources. But if you have a by-law, the choice of whether or not to take action is yours.
Making a by-law restricting such activities may be an option, but until the courts have considered the issue, this is a grey area and such a by-law might not be enforceable.
So why not pass the by-law and see what happens? A grey area works to your advantage too. Waiting for someone else to pass a by-law and then see what happens when it’s challenged and applying it to your building is leaving too much in other people’s hands. Pass your lawyer-approved by-law and see if anyone challenges it or, if need be, if NCAT supports it.
The difficulty is that the strata management legislation prevents a by-law from prohibiting or restricting a lease or other dealing relating to a lot and that there is doubt about what this actually means. The limited case law to date suggests that these types of arrangements probably can be restricted by by-law. Of course, the more moderate the by-law, the more likely it is to be enforceable.
Again, this is an argument for passing a by-law rather than waiting for someone else to do the heavy lifting for you. Note the phrase “restricting a lease” when it comes to the suggestions below.
A by-law regulating such arrangements, but not prohibiting them, would be more likely to be enforceable, particularly if the regulation was moderate.
I can’t see why that would be the case. The law doesn’t establish degrees of “interfering with dealing”. You can either pass a by-law or you can’t. In fact, saying “we will allow short-stay letting under certain conditions” could be argued as more “interfering” than a by-law that simply says owners must obey council zoning.
For example, such a by-law might involve … OC approval being required for lettings outside specified parameters, e.g. length of stay, number of guests or to blacklisted guests (previous troublemakers) and the owner being responsible for ensuring compliance with by-laws, including any additional behaviour and other requirements imposed by the particular by-law.
To me, that goes way beyond what the law allows in terms of “interfering with dealing”. I don’t think you can be that prescriptive.
A by-law outright prohibiting short-term lettings would be less likely to be enforceable, but less so if the definition of “short-term letting” is reasonably tight.
I agree that a simple ban on short-stay letting is unlikely to be enforceable but I don’t see how specific restrictions on holiday lets would be less susceptible to a challenge. Remember that phrase again – “restricting a lease”.
Lady P adds:
Some suggestions that may have sufficient ‘teeth’ … a definition of ‘short term’ in a by law may be ‘a period of time that is not less than 7 nights and not greater than 90 nights’. This definition has restrictions but is not overly restrictive. This definition would not permit people to stay in the building for a any time that is less than a week – hopefully should deter the bucks party crowd! Longer minimum periods could also be used (i.e. 10 nights) but must not be too long or they would be deemed to be too restrictive.
There is another principle of strata law, and that is you can’t pass by-laws that would supersede superior law. The Residential Tenancies Act establishes residential tenancy as at least 30 days and many if not most councils define the minimum residential tenancy as three months. We don’t get to set our own definitions – we have to take those established by superior laws such as the RTA and/or council by-laws.
A by-law regulating ‘short term’ letting could make permission conditional on certain actions being undertaken by the owner e.g.
(1) that the owner obtains a written guarantee from each and every person using his apartment on a ‘short term basis that the person using the apartment and the common property will comply with all of the building by-laws such as no smoking on common property, noise, nuisance, parking, damage to common property etc, and …
That is already part of the SSMA under the occupants’ responsibility for the behaviour of guests and tenants’ and guests’ responsibility to obey by-laws and strata law.
(2) for permission to be granted to an owner by the OC to allow ‘short term’ letting that an owner (or an agent of the owner) must agree to be … contactable by the EC 24/7 and (c) must be proximate enough to the building to immediately go to the building when advised by the EC that a breach has been committed by the person in the ‘short term’ accommodation, and (d) must agree to personally and immediately evict the people in the ‘short term’ holiday accommodation at any time of the day or night should the person in the ‘short term’ accommodation be breaching any by laws, and (e) must agree to the possible revocation for a period of 6 months of the permission granted by the OC if the owner is found to be in breach of this by law.
However admirable or desirable, I don’t think any of these can be part of valid by-laws. The law is skewed to prevent OCs from interfering with the way owners deals with their property. It also has safeguards that prevent Owners Corporations from creating their own legal structure that goes beyond the law.
I think as soon as you pass a by-law that says “you can have holiday letting but …” you have opened the door to holiday letting and a smart lawyer will knock over all the conditions that you apply to the permission by saying you didn’t have the right to create those conditions in the first place.
If your local council zoning doesn’t provide the basis for restrictions on short-stay letting, then the above might be worth a try. But if there was a simpler option, grey area or not, I would take it.
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@Lotsofstairs said:
Do you have a link to the Fair Trading Commissioner advice please?
Plus does this advice apply to situations where a bedroom is let out and there is evidence the premises are advertised on say the AirBnB website?The following is an extract from (then) Fair Trading Commissioner Rod Stowe’s letter to a Flat Chat reader and prominent strata committee member.
The reforms to the strata laws in the Strata Schemes Management Act 2015 (the Act), which commenced on 30 November 2016, will make it easier for owners corporations to enforce by-laws and increase penalties for non-compliance. New model by-laws can address issues that may arise from short-term letting.
Schedule 3 of the Strata Schemes Management Regulation 2016, which contains the model by-laws, provides examples relating to noise, vehicles, obstruction of common property, damage, and the behaviour of owners and occupiers, among others.
Owners corporations can examine their by-laws with these examples in mind. The Act also provides a number of provisions which may be of assistance to strata schemes facing problems regarding
short-term letting.For example, model by-law 17 in Schedule 3 requires an occupier of a lot to notify the owners corporation of any change to the use of their lot for short-term or holiday letting. The notice would have to be given in writing at least 21 days before the change occurs or a lease or sub-lease commences. Such a by-law would provide an owners corporation with enough notice of short-term letting so arrangements could be made on matters such as safety and security.
Section 82 of the Act also allows a lot owner to consent to paying a larger individual contribution if the way their lot is put to use would adversely affect the insurance premiums to be paid by a strata scheme. The NSW Civil and Administrative Tribunal may make such an order if it is of the view that the owner’s agreement to such an increase has been unreasonably refused. It may be that short-term holiday letting in a scheme may have an adverse effect on the insurance premiums that would be payable. This is a matter for the owners corporation to determine.
Section 137 of the Act allows an owners corporation to pass a by-law restricting the occupancy of designated bedrooms in a lot to no more than two adults. The section contains safeguards to protect large families and temporary visitors. A by-law of this type may assist owners corporations in controlling overcrowding, which may be a problem with short-term holiday letting.
Section 153 of the Act places an onus on owners and occupiers of lots in a scheme, among others, to not create a nuisance or hazard, either in the lot, or on the common property.
This section also prohibits persons from using the common property in a manner that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot. This provision may be of use to owners corporations regarding the conduct of persons who may be short-term letting in their scheme.
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Or maybe you should just get a strata manager who actually manages. I would consider failure to register a by-law as a sackable offence under the terms of most strata management contracts.
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I just checked. Section 141 says you have only 6 months to register the by-law. You should charge your Strata Manager for the costs of another General Meeting, which you will need to re-vote and pass the by-law.
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