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Approvals for major changes done on a nod and a wink can cause horrendous problems for strata schemes down the track, mainly because in the absence of a by-law apportioning responsibility for future maintenance to the lot owner, it falls to the owners corp by default.
If there is major work being done without permission, seek an interim order from the tribunal to have it stopped until proper approval is sought and given.
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It’s hard in a small self-managed scheme but basically the owners corp should arrange for repairs to common property and then charge the owner who caused the problem.
The owner of the awning should also be given the choice of repositioning the awning, paying for the repairs and accepting responsibility for future maintenance (via a by-law) or be required to take it down.
Ask for this in writing and if nothing is done within 2 months, seek orders under section 232 at NCAT.
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Section 232 of the new Act is a catch-all provision that allows the Tribunal to order certain by-laws to be passed and work to be done.
Tell your strata manager that if you don’t see real progress on this within the next week or so, you will commence proceedings at Fair Trading with a view to seeking orders at NCAT.
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Your fiance can only be nominated by a member of the committee so unless you are also a member of the committee, he would have to first get elected and then get nominated by another committee member. The regulations seem to specify that the nominations have to be by “another member”.
I will look into that and report back here.
You can nominate anyone to act as your proxy provided you do it on the appropriate form (which should be provided with your agenda) and that all your levies are paid up to date BEFORE the meeting.
So, if you are not at the meeting, the process would be:
- As owner, you sign the official proxy form (you can download a copy here) nominating your partner as your proxy to vote on your behalf.
- Your partner would nominate himself for election to the committee.
- If elected, he would have to be have to be nominated for election as chairman by another member of the committee.
- That nomination can be made before the meeting (although it seems to assume the person making the nomination is going to be elected).
Here is the relevant section of the new strata regulations:
11. Nominations for officers of strata committee
(1) The written notice of the first meeting of a strata committee after the appointment of the committee is to include a call for nominations for chairperson, secretary and treasurer of the committee.
(2) Any person who is a member of the strata committee may nominate another member for election as any or all of chairperson, secretary or treasurer of the committee.
(3) The nomination is to be made by written notice given to the person convening the meeting that states the name of:
(a) the person nominated, and
(b) the person making the nomination and that the person nominated consents to the nomination.
(4) The person convening the meeting must include any prior nominations in the notice of the meeting at which the election is to take place. Notice of any subsequent nomination is to be given by the convenor at the meeting.
(5) A nomination may be made at any time before the election is held and may be made at the meeting.
(6) If a ballot for the election of a person as chairperson, secretary or treasurer of the committee is required, the election is to be conducted by a show of hands of persons at the meeting.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.
Did the downstairs owner have written permission to install the awning? It should have been via a by-law that, apart from allowing them to do it, apportioned responsibility for damage and repairs to them.
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There is nothing in principle to stop an non-owner being elected to the committee and thence to an office-bearer role.
However, owners can only nominate one person and only if they are not standing for election themselves.
Officers of the committee are nominated by other members of the committee (or themselves) and are elected by a show of hands at the committee. The number of votes cast in electing them to the committee have no bearing on the number of votes in their favour for election to officer roles.
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We’ve had a response from the Minister’s office to the effect that anything that looks a deliberately dodgy as this scenario could be effectively challenged at NCAT under Section 232, the magic bullet of strata complaints that allows the Tribunal to revoke and rescind anything that seems to be against the letter or intent of the Act.
On the question of a committee “stacked” with company nominees, and where there are declared or undeclared conflicts of interest, while the decisions it makes are not automatically rendered invalid, the circumstances of the decision-making could lead to them being rescinded.
“Whilst any contravention of the disclosure requirements does not invalidate a resolution, such a contravention may assist NCAT in relation to invalidating a resolution or removing a member of the strata committee for such a contravention,” the Minister’s media officer told us.
So, once again, it’s a question of going to the culprits and asking them if they would like to withdraw or be taken to NCAT where their grubby games will be publicly exposed and then they may be kicked off the committee anyway.
This was the response from the Minister’s office.
The complainant raises the issue of the executive of the strata committee of a strata scheme attempting to control the election of members of the strata committee through the provisions of the Strata Schemes Management Act 2015.
s.232 of the Act allows NCAT to make orders for disputes relating to a strata scheme, including disallowing resolutions and removing members of the strata committee.
{Flat Chat} is … correct in its advice to the complainant that the requirements in the Act for disclosure of pecuniary interests by members of the strata committee would tend to act against the interests of the secretary in controlling the day-to-day operation of the strata scheme.
Whilst any contravention of the disclosure requirements does not invalidate a resolution, such a contravention may assist NCAT in relation to invalidating a resolution or removing a member of the strata committee for such a contravention.
It is important to note that the owners’ corporation is the paramount decision-making body of any strata scheme. It can continue to make decisions about any matter, even though it has been delegated to the strata committee or a strata managing agent. An owners’ corporation may, in a general meeting, continue to exercise all or any of the functions conferred on it by the Act or the by-laws, even though a strata committee or managing agent holds office.
The complainant should be made aware of the provisions of s.36 of the Act. Whilst a decision of a strata committee is taken to be the decision of the owners’ corporation, in the event of a disagreement between the owners’ corporation and the strata committee, the decision of the owners’ corporation prevails.
The strata committee cannot make a decision that is required by or under any Act to be made by the owners’ corporation by unanimous resolution, special resolution or in general meeting. It also cannot make a decision on any matter or type of matter that the owners’ corporation has determined in general meeting is to be decided only by the owners’ corporation in general meeting.
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We took this issue up with Innovation and Better Regulation (inc. Fair Trading) Minister Victor Dominello’s office.
You can read the entire response below but the significant point is that any dodgy decisions made by a self-interested developer (or ‘original owner’ to give them their Sunday name) can be challenged and overturned by application to NCAT for Section 232 orders.
So now it’s a question of going to the developer and asking them if they want to do this the easy way (accept defeat and behave) or the hard way (pay legal fees, then accept defeat and behave).
Here’s the latest response from Minister Dominello’s office:
- It appears that the original owner of the strata scheme, during the period prior to the end of the initial period (when at least one third of the unit entitlements have been sold), may be attempting to levy new lot owners for costs, including for unmetered water, associated with the lots that haven’t yet been sold.
[Flat Chat’s] advice to the complainants is essentially correct. Section 83 of the Strata Schemes Management Act 2015 provides that contributions levied by an owners corporation must be levied in respect of each lot and are payable (subject to this section and section 82) by the owners in shares proportional to the unit entitlements of their respective lots. Therefore, lot owners cannot be required to pay for unmetered water.
It also appears that the original owner has engaged the services of a caretaker. The Act is very clear in that any contract that engages a caretaker or strata managing agent can only be enforced until the first annual general meeting, when it expires. It is then the responsibility of the owners’ corporation at that meeting to engage a caretaker or strata managing agent for the strata scheme if it wishes to do so.
Whilst the advice that [Flat Chat] has provided to the complainant relates to the previous Strata Schemes Management Act 1996, the advice is still largely relevant.
However, the complainant should be made aware of the provisions of s.232 of the new Act, and the associated wider powers of the NSW Civil & Administrative Tribunal (NCAT) to be able to address complaints. NCAT has powers to be able to disallow resolutions made at general meeting, remove members of a strata committee, including its officers, and to appoint a strata managing agent, amongst other powers. Lot owners have a right to apply to NCAT to exercise these powers.
Complaints
NSW Fair Trading has received a complaint regarding water charges in this strata scheme.
The complainant was provided with information on the application of strata laws and lodging an application for mediation. If mediation is unsuccessful an application may be lodged with the NSW Civil and Administrative Tribunal.
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I can’t tell from your post whether or not the strata manager has delegated powers to act on behalf of the committee.
If they do, then they should have organised an AGM.
Your message is quite confusing as you say there is no executive but that there is one member. It’s either one thing or the other.
I’m not sure that you legally need an EGM to fill vacancies on a committee unless the membership of the committee is now less that the quorum (half the number of committee members agreed at the last AGM). If that is the case, the committee has ceased to function and an AGM or EGM should be called to hold a new election.
If you have asked for a meeting for this purpose and the remaining member has failed to organise one within two months of your request (in writing), you can apply for section 232 orders at NCAT requiring a meeting to be held.
If the remaining member is not prepared to act as the chairman or secretary of the strata scheme, you can apply under section 48 of the Act (see below) for the Tribunal (NCAT) to appoint someone (probably you) to act as secretary and chair and organise a new election.
It may be that the strata management contract allows the strata manager to assume the duties of the committee in the case of a situation like this.
If so, you might cut some corners and tell the strata manager that if they don’t organise an AGM immediately (because you can now hold your AGM at any time in the financial year) you will report them to Fair Trading and thereafter closely examine the terms of their contract to see if it should be renewed when it comes up, as it legally must, some time in the next year.
I have to say that it is not unusual for strata managers to be lax when it comes to small schemes as there is comparatively little revenue for not much less work. It may also be that that the strata manager and absentee owner have a cosy “no hassles” relationship that suits both parties to the detriment of the strata scheme.
Nothing will happen before the new year for the reasons you have stated but the first week in January you need to be writing to or calling the strata manager and telling them that their reputation and future contracts are on the line.
So get a hold of the strata management contract and establish whether or not they are acting in lieu of a functioning committee.
You also need to get the support of two of your neighbours before the election to make sure you can restore some sense to the whole business.
And, just to be clear, the Owners Corp has to pay for repairs of common property, regardless of who is on the committee and whether or not they want to.
48 Tribunal may order meeting if no officers or strata committee
(1) The Tribunal may, on application by an owner, mortgagee or covenant chargee of a lot in a strata scheme, make an order appointing a person to convene and hold a meeting of the owners corporation if there is not a chairperson, secretary and treasurer of the owners corporation, or if no strata committee exists, after the first annual general meeting of the owners corporation has been held.
(2) The Tribunal may make any other ancillary orders it thinks fit, including the following orders:
(a) orders relating to giving notice of the meeting,
(b) orders relating to the person who is to preside at the meeting.
(3) The person who is to convene and hold the meeting is to be a person nominated by the applicant, or appointed by the Tribunal, who has consented to the nomination or appointment.
(4) The meeting is to be convened and held within the time (if any) specified in the order.
(5) A person appointed by an order under this section to preside at a meeting is taken, while so presiding, to be the chairperson of the owners corporation.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.
There is definitely a fee ($28 the last time I lookrd). The Strata Manager may let you photocopy the list (another fee) or you can just write the addresses down or photo them on your smartphone. Don’t accept any BS about privacy. As an owner you are entitled to this
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There’s nothing illegal about what the tenant has done (and good on her for getting involved). You can’t legislate for the don’t-knows and don’t-cares; it’s up to the rest of us to educate and activate them.
FYI, under the new laws she would be restricted to one proxy (5% of 36 = 1.8 = 1) although I wonder if she would get her full 1.8 if it went to a poll vote. I shall ask.
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@Marvin said:I’m not aware of any legislation in NSW that requires a replacement after 10 years.
New regulations in Queensland come into effect on January 1st. You will find a fact sheet from the Queensland Fire Service here.
Regulations are less stringent in NSW but did you know that landlords have to fit new batteries to smoke alarms every time they change their tenancy? You’ll find a fact sheet about smoke alarms regulations in NSW here.
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You are on the right track. Change the by-laws you want to update and leave the other special resolutions or scheme-specific by-laws in place.
New or amended by-laws need to be approved by 75 percent of those voting at a general meeting.
We are also all obliged to review our by-laws by December 1st next year.
A sensible approach would be to look at your existing by-laws and see if the model by-laws are worded better or reflect the wishes of the community more closely.
Then, well in advance, send out an advisory to your owners, explaining the process, showing the proposed changes and inviting their comment.
There will be contentious issues, such as pets, smoking and occupancy limits so be prepared for a lively discussion (if you are lucky), then present your best-guess by-laws at your next AGM or a special general meeting called for that purpose.
Bear in mind that by-laws can’t supersede superior laws (such as local council zoning) and you can’t change by-laws that, for instance, give exclusive use to an owner without that ownewr’s consent.
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If you are in a pre-1996 scheme, the by-law has changed automatically (see below and note qualifying rider at the end).
As you can see, there is an inbuilt contradiction but that is resolved by the superiority of the Act over any by-laws.
Also remember that all strata schemes have to review their by-laws in the next year and, if the review is conducted properly, by-laws that don’t fit with the Act should be rewritten or removed. I believe this by-law would be a prime candidate for that.
Even so, there is a clear distinction in the Act that says the common property concerned must be connected to the lot: “The owner of a lot in a strata scheme may carry out cosmetic work to common property in connection with the owner’s lot without the approval of the owners corporation.”
So, yes, you can screw hooks into INTERNAL common property walls without permission but bear in mind that the Act also makes you liable for any damage you cause in so doing.
One other thing occurs to me – can the owners corp now prevent you from painting the outside of your door a different colour?
Meanwhile, here is the relevant by-law for pre-1996 schemes:
5 Damage to common property
(1)An owner or occupier of a lot must not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property without the approval in writing of the owners corporation.
Note. This by-law is subject to sections 109 and 110 of the Strata Schemes Management Act 2015.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.
@Susanp said:
If this is correct that it’s now legislation is this the responsibility of the owners corporation to ensure everyone is compliant?Also I If they aren’t compliant, apart from being a safety issue which is bad enough, but could this effect our insurance policy as well?
It is the OC’s responsibility to make sure that strata lots are accessible for checking by fire safety inspectors.
If the smoke detectors are hard-wired to a central control box, they are the OC’s responsibility. If they are separate, stand-alone detectors inside the unit, they are the lot owners’ responsibility.
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