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@Court said:
My reading of the Act is that a Building Manager can be elected to the Strata Committee if they are an owner.Aaaah! I missed that very obvious point (thanks Tharra).
Your basic problem is that not enough people want to be on the committee or, at the AGM, they would call for a larger number (up to 9) and get themselves elected.
You seem to be suggesting some sort of impropriety. If so, that’s what you have to deal with. The strata manager can only do what the Owners Corp and committee want – unless that is illegal. I don’t think this is.
Unless the caretaker is siphoning off funds, only looking after his lot, favouring some owners over others or doing work that should have been decided on at a meeting, I can’t see the problem.
It’s surely better to get things done when they need to be done than have to hold a meeting every time you need a pot of paint.
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Under NSW strata law (SSMA Section 32 [a]) a building manager may not be elected to a strata committee. A building manager may also be referred to as a caretaker, according to section 66 of the Act (below)
In short, your caretaker shouldn’t be on the committee in the first place unless they are doing the work on a purely voluntary basis. Also, if they are being paid, your strata manager should be asked to explain why they haven’t picked up on this.
However, if your caretaker is doing this work as an unpaid hobby (bless him), all you need is to make sure all your invoices etc are properly accounted for and that your strata insurance covers him for injuries.
66 Building managers
(1) A “building manager” is a person who assists in exercising any one or more of the following functions of the owners corporation:
(a) managing common property,
(b) controlling the use of common property by persons other than the owners and occupiers of lots,
(c) maintaining and repairing common property.
(2) However, a person is not a building manager if the person exercises those functions only on a voluntary or casual basis or as a member of the strata committee.
(3) A person may be both a building manager and an on-site residential property manager.
(4) A building manager may be a person who is entitled to exclusive possession (whether or not jointly with any other person) of a lot or common property in a strata scheme.
(5) For the purposes of this Act, a person is taken to be a building manager for a strata scheme if the person meets the description of a building manager set out in this section, regardless of whether the title given to the person’s position is building manager, caretaker, resident manager or any other title.
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For any other committee that has this problem, I would start minuting breaches under a system where members are given a warning verbally but if they persist, they are named in the minutes as having breached the code of conduct.
First of all, you would make it an agenda item for a committee meeting – under a heading like “Breaches of strata committee code of conduct” – and get a majority to agree that in future breaches of the code of conduct will be treated this way.
At the very least, at the next AGM you can point out that a certain owner is disruptive at meetings and shouldn’t be re-elected.
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Sir H is right. Pass a bylaw that any unit being used for short stay rentals must be fitted with a separate water meter at the owner’s expense.
Meanwhile, as advised by the Fair Trading Commissioner, start hitting them with penalty notices for every time there is a new tenant and that tenant’s name and address are not registered with the owners corp as per section 258 of the Act (see below).
That’s a potential $500 fine for every breach that goes straight into owners corp coffers.
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.
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I don’t think this by-law would stand up to a challenge at the Tribunal. Section 139 says this:
(1) By-law cannot be unjust
A by-law must not be harsh, unconscionable or oppressive. (Note : Any such by-law may be invalidated by the Tribunal (see section 150).
I would be telling the committee that they need to consider the consequences of trying to silence owners who have a right to raise issues with the committee. If people don’t want to communicate with other owners, they shouldn’t be on the committee in the first place.
In the meantime, you could propose an amendment to the motion along the lines of “the strata manager will be required to respond to the owners in a reasonable and meaningful way within five working days or they will be considered to be in breach of their contract.”
That should put the strata cat among the snoozing pigeons.
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Six people on a committee of a building of six lots is too big. Try to reduce the number of members of the committee at the AGM to a more manageable three.
Failing that, broker an agreement that one person will take the disputed role for six months while the other takes it for the rest of the year. This can all be done by a simple vote by the committee and everyone will be able to see who is best at the job.
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If the car parks are separate lots then their unit entitlements apply in poll votes but I am not sure if they are considered that same as residential lots when it comes to proxy holdings.
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@Sir Humphrey said:
One thing though. In the ACT, perhaps elsewhere – I’m not sure, a meeting that lacks a quorum can proceed with a ‘reduced quorum’ after waiting 30 minutes for stragglers to show up.This has been the case in NSW since the new laws came in in December last year.
Also, I wonder if too much time hasn’t passed for the AGM decisions to be challenged – I have a feeling there is a time limit of 28 days.
The best angle of attack would be the conflict of interest issue.
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Reading between the lines, I sense that Lawoftheland is looking for a stick with which to beat owners (for the very good reason that security and safety are being compromised).
I would think, if nothing else, doors left open constitute a fire risk as well as an open invitation to thieves.
I would be tempted to put up a by-law making it a specific offence to leave these doors open, then launch and education campaign letting people know they could be fined for doing so and if that didn’t work, start making noises about installing security cameras.
Most people will probably get the message before you actually do that.
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Jaus make sure that you have done everything by the bookand that the building is fully compensated for the loss of common property and that you have taken responsibility for the repair and maintenance of any common property affected by your extension.
In other words, don’t give the dissenter any grounds for making your life more difficult than it needs to be.
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T continue Sir H’s reasoning, this is what the “who’s Responsible” document says:
If they (fences) are shown as a thick line on the strata plan then they are deemed a common wall and the responsibility of the owners corporation.
However, if they are shown as a thin, dotted or no line on the strata plan then they are treated in accordance with the Dividing Fences Act and are treated as follows:
1. Divides two lots. Each owner is responsible 50/50
2. Divides one lot from common property. The owner is responsible 50% & the owners corporation is responsible 50%
3. Divides one lot from the adjoining property. The owners corporation are responsible for 100% of its share
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You make several references to the strata council. Which state are you in?
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No. What’s done is done. What you could do, however, is write to the strata committee and ask them to note that your opinion has changed and to re-visit the issue as soon as possible. They don’t have to comply but at least you have your true opinion on record.
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Winston, your quote from the Act contains the answer to your question – the need to have by-law breaches dealt with by the committee is negated if they have delegated powers to the strata manager.
(3) A notice must not be given unless a resolution approving the issue of the notice … has first been passed by the owners corporation at a general meeting or by the strata committee of the owners corporation.
(4) Subsection (3) does not apply to the giving of a notice by a strata managing agent if that function has been delegated to the strata managing agent in accordance with this Act.
Sir Humphrey is right, many strata committees leave the day-to-day decision-making to their strata manager. They should not, however, be making decisions that should only be made at a general meeting.
If you have a beef with this, ask to see where it was agreed that the strata manager should have delegated powers.
On the other hand, an informal meeting is not a meeting – it is a chat. But that chat could result in action that only requires the agreement of the strata manager so there is nothing terribly sinister about that. If you want proper SC meetings to discuss issues then there are mechanisms for calling them.
I have to say that if you approach this by citing flawed quasi-legal arguments (which you have not interpreted correctly yourself) expect to be shot down in flames and all your valid complaints dismissed as the rants of a ‘bush lawyer’.
And just a word on housekeeping on this forum – a headline for a topic should be a short, succinct summary of the topic. Yours, before I edited it, was a long sentence from which even I struggled to deduce a clear meaning.
I also think that may be indicative of a potential flaw in your approach to your committees. Establish what it it is that you want them to do in simple terms that they can understand.
A torrent of words and selective (and possibly incorrect) interpretations of the Act will just give them too many opportunities to pick holes in your argument and dismiss your point of view, regardless of whether or not it is valid..
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