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The Act sets a limit of two months for the OC to respond to requests for action – and that includes saying no or saying nothing.
The Act simply says that the OC must maintain and repair common property and various legal rulings have established that this can’t be delayed by secondary issues such as having to wait for the outcome of a related court case (like suing the developer over defects).
The OC needs to establish a reasonable and realistic program for doing the work and finding the money to pay for it. Otherwise you can seek orders at NCAT compelling them to do so. This should be made clear to them at mediation which is an important step towards doing that.
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In that case, the fair thing to do would be to get an estimate of the value of the property with and without the courtyard and divide the difference according to the unit entitlements and give the remaining owner that (and a bit extra to be on the safe side).
That way, if the fifth owner comes here for advice, I can tell them, hand on heart, that you have done the right thing and there’s probably no point in taking this to NCAT.
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Now, I am not a lawyer but there is a concept in law called something like Fraud on the Minority which applies where someone with the requisite number of votes uses them to disadvantage someone else, without properly compensating them for their loss.
This is the principle that was notably used to require owners who voted to award themselves use of common property – extending into the roof of the building – without adequate compensation to the other owners.
Now, my first advice would be to talk to a lawyer.
Then (unless the lawyer recommends otherwise) tell the majority owner you believe they have inadvertently committed a Fraud on the Minority and ask them to use their voting power to change the by-laws to include appropriate compensation for you and to take responsibility for the ongoing maintenance of the common property they have acquired.
Do all this is writing and if they fail to respond appropriately, you could certainly apply to Fair Trading for mediation, then to NCAT to have the special resolutions overturned and/or have an element of compensation attached to them. I believe you would do this under section 149 (below).
I’m not sure if there’s anything you can do to prevent the special resolution by-laws but at least you can be compensated.
I would be looking for compensation based on an independent valuation (paid for by the majority owner) and with a condition in the by-law that the owner had sole responsibility for the maintenance of the common property thus acquired.
I also wouldn’t delay as there is a two-year window after which these by-laws are assumed to have met the requirements to be registered.
149 Order with respect to common property rights by-laws
(1) The Tribunal may make an order prescribing a change to a by-law if the Tribunal finds:
(a) on application made by an owner of a lot in a strata scheme, that the owners corporation has unreasonably refused to make a common property rights by-law, or
(b) on application made by an owner or owners corporation, that an owner of a lot, or the lessor of a leasehold strata scheme, has unreasonably refused to consent to the terms of a proposed common property rights by-law, or to the proposed amendment or repeal of a common property rights by-law, or
(c) on application made by any interested person, that the conditions of a common property rights by-law relating to the maintenance or upkeep of any common property are unjust.
(2) In considering whether to make an order, the Tribunal must have regard to:
(a) the interests of all owners in the use and enjoyment of their lots and common property, and
(b) the rights and reasonable expectations of any owner deriving or anticipating a benefit under a common property rights by-law.
(3) The Tribunal must not determine an application by an owner on the ground that the owners corporation has unreasonably refused to make a common property rights by-law by an order prescribing the making of a by-law in terms to which the applicant or, in the case of a leasehold strata scheme, the lessor of the scheme is not prepared to consent.
(4) The Tribunal may determine that an owner has unreasonably refused consent even though the owner already has the exclusive use or privileges that are the subject of the proposed by-law.
(5) An order under this section, when recorded under section 246, has effect as if its terms were a by-law (but subject to any relevant order made by a superior court).
(6) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order.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 Owners Corporation has the right to gain access to your lot in order to inspect and repair or service common property.
However, you can demand that they get orders from NCAT requiring you to give them access every time they need to do so.
I’m not suggesting you be deliberately obstructive but this is a situation that might require some leverage – and that’s yours.
So, taking a more positive position, put a motion to your committee that they create a new access point on common property.
If they refuse, or show signs of dragging their heels, tell them that you will make it as difficult as possible for them to access the roof through your unit, every time they need to do so.
In other words, it’s going to cost them something whichever way they decide to go, and they wouldn’t want to need your approval in an emergency, so they may as well fix the problem once and for all and move the hatch.
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If your maximum use of hot water is around 7- 8 am in the morning and 10 to 11 pm at night – getting up in the morning and going to bed at night – a delayed switch-on would account for the odd timing. In other words, it’s taking your system four hours to catch up with water usage (or whatever …).
So yes, as suggested above, it’s definitely worth getting the hot water system checked. A water leak, a faulty valve or a faulty thermostat might account for the odd and variable bills.
My money would be on a faulty thermostat – but I’m just guessing. To get your agent “interested” tell them if they don’t send a plumber round to check, you are going to seek a rent reduction through Fair Trading to compensate for the excessive payments cause by a faulty hot water system.
Also, if your hot water tank is leaking, this could be a precursor to a tank failure – and a very messy and destructive flood.
Ask the agent to sent a plumber experienced with hot water systems.
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@tharra said:
If you were to get an exclusive use by-law passed down the track could that be rescinded by a 75% majority at another AGM resulting in the loss of exclusive use of common property?Special resolution by-laws of this kind can only be rescinded or changed with the written permission of the lot owner who benefits from it.
Wouldn’t a more permanent & more costly solution be once the 75% majority have agreed to the exclusive use of common property & the council are happy. i.e. all the ducks are lined up… to have the lot + common property extension surveyed, the unit entitlement increased with an corresponding increase in levies & the registered strata plan amended as per the survey? Or is this an impossible avenue?
By “costly” do you mean cost-efficient (which is the opposite)? In any case, that would be much more expensive and time consuming. The property rights by-law is a tried and tested routs for this kind of thing.
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You could also look at the posts here which contain the formula for calculating the minimum compensation you should pay the owners corp.
Just to be clear, this phrase in Lady P’s post above “written consent of each owner on whom the by-law provides the right or special privilege” means you. You have to consent in writing to the terms of the property rights by-law.
Just to summarise:
You will need a property rights by-law which will require the approval of at least 75 per cent of votes cast at a general meeting (that’s 75 percent of votes, not 75 percent of owners).
The property rights by-law should say that you agree to take over maintenance of any affected common property
You should be offering some sort of compensation and to agree to an upwards adjustment of your unit entitlements
You should also be offering to pay the OC’s costs
You will need council planning approval
You should also include a schedule of works that says when the work will be done (times of day, estimated duration of project etc) and include measures for removal of rubble and protection to common property during work.
Don’t forget that the other owners are under no obligation to agree to this. However, if you do the right thing and bend over backwards to make it all worth their while, you could force their hand at a tribunal if they say no.
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You are right. It’s one proxy per proxy holder in a building of that size. In the past there was no limit.
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My apologies. I’d forgotten that there are people who will go ahead and do what they want, regardless of laws, by-laws and any concern for their neighbours.
Can I ask, have council been involved? Surely this would require planning permission – most councils demand it when rooms are being reconfigured.
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@Imogen Bannister said:
A lot owner is doing extensive renovations including demolishing of walls and ceiling (non of which have been approved).So the strata committee is allowing an owner to destroy common property without any controls? You do realise that when this strata vandal sells the property the maintenance of all these changes falls back on the other owners?
I’d be seeking an interim order right now to have the work stopped until the proper approvals have been sought and granted. A call to your local council planning department might be worthwhile too.
Oh, and please don’t tell me she’s removed the ceiling so she can use the roof space!
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First of all, the SCA standard contract is basically fair and reasonable but there may be terms (like ‘fair and reasonable’) that are a little too loose for some tastes – especially those who have had their fingers burned in the past.
I believe the Owners Corporation Network (OCN.org.au) has been wrestling for some years over the standard strata manager’s contract. And for as long as I can remember, the SCA has been using the copyright argument to prevent anyone from altering the contract.
Personally, I think the copyright argument is self-serving BS and the SCA really needs to get over itself. If your customers want something that isn’t in their interests and it doesn’t bother the strata manager, why not put a line through the offending clause and be done with it?
To get back to the OCN, I believe members can get access to their strata manager contract, so give them a hoi!
And it’s worth getting this right. Despite all the complaints about strata managers that we get and some serious issues of mismanagement and even corruption that have been reported to Fair Trading, the number of Strata Management licenses revoked (for misdeeds as a strata manager) is ZERO.
In short, Fair Trading will not look after you if you get a rogue strata manager – the kind that do the one-week course then start charging like wounded bulls. So you need a watertight contract.
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@tharra said:
I suggest you consult a debt recovery specialist who knows strata.This is excellent advice. Strata debt recovery agencies know the law inside out and the reasonable costs of their services in pursuit of the debt are borne by the debtor. Yes, sometimes you can get a free lunch!
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@swoo said:
What can I do to delay until Owners can look at an alternative quote. The work is estimated to be around $185,000 and is considered non structural as reported by engineers.Get a verbal quote from the alternative contractors then stand up at the meeting and propose an amendment to the strata manager’s motion that:
a) Other quotes be considered – including yours.
b) alternative means of financing the project be considered, such as strata loans, rather than everyone having to pay large amounts of money up front.Your problem is that everyone at the meeting has seen the agenda but not your alternative. So print up a very simple and non-abusive A4 or half-page that says something like the text below.
Hand that out to the other owners at the start of the meeting and then speak to it. Try to avoid allegations of corruption or preferential treatment – let your fellow owners come to any such conclusions themselves.
If you can find someone in the room prepared to support your case by asking relevant questions, so much the better.
Another meeting will cost about $500 tops to arrange. Your potential savings would have to be more than that to make this worthwhile.
If your alternative contractor can’t provide even a guesstimate before the meeting, I wouldn’t bother. That would portray a worrying lack of motivation to me.
Item XX on your agenda
As approved by the strata committee, I have received a quote from the highly reputable firm of [INSERT NAME] who will do the work for $xxx,xxx.
I also know there are ways of financing this work that will not involve huge one-off special levies which may cause hardship with some owners.
Please support the amendment I propose (below) so that we, the owners, can consider all options available to us and make an informed decision at a later date.
AMENDMENT:
I propose we consider an amendment to motion XX, that, before a final decision is made at a subsequent general meeting:
a) Other quotes be considered.
b) alternative means of financing the project be considered, such as strata loans, rather than everyone having to pay large amounts of money up front.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.
Just winding this back a little, the Victorian legislation allows the owners corporation to delegate its basic powers to the committee (which is standard practice in NSW too) and it allows the committee to delegate its powers to an individual (see sections 11, 101 and 102 below). This does not include any decisions that require special resolution or unanimous votes.
If the owners corp or committee has at any point delegated powers to the chair, and this has been officially minuted, then these powers would pass to the current chair. Right now, that would be you. I hasten to add, however, that this would have to be done “by instrument” and that means it would have to have been voted on and formalised on a specific form (available here), and stamped with the Owners Corp seal. The absence of any such “instrument” makes the delegation invalid.
If, however, the former chair has been legally given delegated powers “by instrument” as a named individual, they can be “un-delegated” via a simple vote at a strata committee or general meeting, depending on which body issued the original delegation.
Otherwise, the general rule is that if there is a committee it elects the chair and the old committee ceases to have any power when the new committee is elected.
Regarding the manager, I suggest you look at Section 6 of the Owners Corporation Act to see if the current manager is in breach of the law or of their contract. If they are in breach, you shouldn’t have to pay them out.
Have a look at this Consumer Affairs Page and click on the link to Owners Corporation Complaints, download the form and fill it in, also go to this VCAT Tribunal page for official complaints about owners corp strata managers
I also suggest you contact Rob Beck of Strata Community Australia (Victoria)(info.vic@stratacommunity.org.au), tell him we sent you, and ask for his help in replacing your current deadbeat strata manager with one who knows what what he should be doing and does it.
The OC manager and the chair are doubtless covering each others backs because they know they will both be out when normal service is restored. But hang in there. You are just a couple of steps away from restoring order.
11. Power to delegate
An owners corporation may by instrument delegate any power or function of the owners corporation (other than a power or function that requires a unanimous resolution or a special resolution or this power of delegation) to— (a) the committee of the owners corporation;
(b) the manager of the owners corporation;
(c) a lot owner;
(d) the chairperson of the owners corporation;
(e) the secretary of the owners corporation;
(f) an employee of the owners corporation.101. Functions and powers of committee
(1) Subject to this section and the rules of the owners corporation, a committee has all the powers and functions that may be delegated by the owners corporation under section 11. Note: Powers and functions that require a unanimous resolution or a special resolution of the owners corporation cannot be delegated under section 11.
(2) Sub-section (1) does not apply to a matter or type of matter that the owners corporation has determined may be determined only by ordinary resolution of the owners corporation at a general meeting. Note: See section 82.
102. Delegation by committee
(1) A committee may by instrument delegate any of its powers and functions to— (a) the manager; or (b) a lot owner.
(2) A committee may by instrument sub-delegate a power or function delegated to the committee to a member of the committee.
103. Membership of committees
(5) Subject to this Act and the regulations, the members of the committee hold office from their election until a new committee is elected.
(6) The owners corporation may at an annual general meeting or special general meeting resolve to add or remove a committee member or replace or remove a committee.
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