[Jimmy-T]

Dudley

You could put together a spreadsheet yourself with columns for the item, when it will need to be upgraded, what the anticipated cost will be then, and the amount per year that you need to set aside to have that money in the bank.

If you are doing upgrades now, get the tradies to give you a reasonable estimate of the “life” of the work and just apply an amount for inflation (3 percent per year?) to get you to the cost next time around.

Otherwise I feel fairly confident that if you went to OCN.org.au and applied to join the Owners Corporation Network you would find all sorts of stuff there that would be handy for you.

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[Jimmy-T]

You won’t find much there.  What you are looking for may be in the Strata Schemes Freehold Development Act 1975 (see below) 

 

25 Transfer or lease of common property

 (1) A body corporate may, pursuant to a special resolution, execute a transfer or lease of common property other than common property the subject of a lease accepted or acquired by the body corporate under section 19 (2).

(1A) Subsection (1) does not authorise a transfer by the body corporate under a strata scheme that is part of a community scheme under the Community Land Development Act 1989 .

(2) A body corporate, pursuant to a special resolution, may, if not prevented by the terms of the lease, transfer a lease of common property accepted or acquired by the body corporate under section 19 (2) or grant, by way of sub-lease, a lease of its estate or interest in common propertythe subject of a lease so accepted or acquired.

(2A) A body corporate may, pursuant to a special resolution, execute a variation of any such lease or sublease pursuant to section 55A of the Real Property Act 1900 .

(3) A body corporate may, pursuant to a special resolution, accept a surrender of a lease, or, if otherwise empowered so to do, re-enter under a lease, granted under subsection (1) or (2).

(4) The Registrar-General shall register a dealing referred to in this section by making in the Register such recordings with respect to the dealing as he considers appropriate.

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[Jimmy-T]

If in doubt, see what the law says:

37   Procedure for requiring information from strata managing agent

(1)  A requirement for information by an owners corporation under this Division must be made by notice in writing served on the strata managing agent.

(2)  The notice must specify a member of the executive committee to whom the information is to be delivered.

(3)  The strata managing agent must comply with the notice by providing a written statement, containing the information required, within 7 days after service of the notice.
Maximum penalty: 20 penalty units.

(4)  A person is not guilty of failing to comply with a notice under this section if reasonable cause for the failure is shown.

(5)  A strata managing agent must not knowingly provide information that is false or misleading in a material particular in a statement delivered in response to a notice under this section.
Maximum penalty (subsection (5)): 20 penalty units.

If you haven’t already done so, follow the procedure above, sending the letter by recorded delivery.  Inform them that if they don’t comply with seven days you will apply to NCAT to impose a fine of up to $2200 under paragraph 3.  And you will be raising a complaint at Fair Trading.

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[Jimmy-T]

@Merrick N Sniper said:
But these things happen here all the time and are seldom linked to a by-law or the Act. Just bad governance such as non-descriptive agendas and minutes, things done on a nod-and-a-wink with no vote or paperwork. I reckon it must be similar in heaps of other stratas.  

Indeed they do … and read this yarn to see how bad things can get when everyone turns a blind eye to the nods and winks – and then won’t let anyone fix it.
 

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[Jimmy-T]

I think you have to go back to square one on this.  Passing an exclusive use by-law retrospectively, to allow limited use, would have been pointless as your DA clearly allows for a certain number of visitor parking spots.  Any by-law that tried to change that would not stand as by-laws can’t be in contravention of superior laws (like planning laws).

Your strata manager is absolutely right and I would be telling the rogue parkers (or parking thieves, as I call them) a few facts of life.

1. They have converted garages into dwellings without planning permission or permission of the Owners Corp. This is illegal and they could be ordered to return them to their previous state.

2. They have taken over visitor parking illegally and obstructed other spaces, again illegally.  They could face orders and fines from NCAT.

So tell them that 20 years ago was another century and things are different now – people who live is strata expect everyone else to obey the law.

They want to have their illegal cake and eat it but this has to stop. If they don’t start acting like good and reasonable members of the community, you (and hopefully other owners) will:

1. take action at NCAT to compel them the Owners Corp to issue Notices To Comply and seek orders and
2. inform council about illegal change of use.
3. Apply to NCAT to have a strata manager appointed to take over the running of the scheme because of their flagrant  disregard for strata law and planning laws. 

Now, what these land-grabbers can or will do is entirely another issue but if they say “we have always done this …” let them see how that stands at NCAT and at the Land and Environment Court when council orders them to return their garages to their intended use. 

In other words – move the cars or lose the illegal extensions to their homes.  They have stolen common property to allow them to expand their homes at everyone else’s expense.  I would have zero sympathy for them.  They’ve had a good run for 20 years – it’s time to put things back the way they should be.

By the way, taking action against your own Owners Corp is far from unusual – and there are mechanisms to ensure that you don’t have to pay a share of their fines and legal costs.

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[Jimmy-T]

A crime is a crime, whether it is white collar or not.  Gaining financial advantage by deception would be a crime.  Paving an area for a barbecue that nobody else wants is just bad politics –  if enough people don’t want it badly enough then they get rid of the committee and remove the offending structure.

The scenario you describe – and other issues like it – are examples of what happens when too few people get involved in the running of a strata scheme.

What you can do in the meantime is to toughen up the procedures in your scheme by making sure the EC meets regularly, minutes its decisions, is answerable to the AGM and cracks down on people who thisnk they can do as they please on common property.

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[Jimmy-T]

Presumably the cameras are still recording, so security has not really been compromised.

However, you could propose a motion for your next EC meeting or, failing that,  AGM that you get full coverage again.

When a committee member says, as they inevitably will, that this would be in breach of privacy laws, ask them to point out which laws.  Basically, so long as you aren’t recording sound, there is no issue.

Fundamentally, this is all about what the majority of owners in your building want.  If the community standard is that every coming and going should be observable from behind the virtual net curtain of CCTV, then they can choose that.

But if the majority wants their secret lovers, drug dealers, escorts and exotic dancers to come and go unobserved, then that is their choice too.

This has nothing to do with privacy laws and everything to do with democracy in its rawest form.  For what it’s worth, I bet the golfers will lose and the drug dealers will win this one. 

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[Jimmy-T]

@Cobra said:
I have a few queries in regard to the new NSW legislation and the issue of a tenant representative.

1. The provision that “a tenant representative for the strata committee may be nominated by the tenants, if there are tenants for at least half the lots in a strata scheme”. Is my understanding correct that the “half” refers only to the number of lots and does not involve the entitlement of the respective lots?

According to the relevant section of the recently released regulations (below) you are right – it’s the number of lots, not the UEs

2. If the above provision applies to a strata, is the Owners Corporation / Strata Committee required to be proactive and organise a tenant representative or is it entirely up to the tenants to organise themselves and approach the Owners Corporation / Strata Committee?

The regs clearly say whoever organises the strata scheme’s AGM must also organise the election of the tenants rep.

3. If there is no approach from tenants the Owners Corporation / Strata Committee is not required to take any action?

No.  If half the lots are occupied by “eligible tenants” then the chair, secretary or strata manager has to organise an election.  By the way, if only one tenant turns up, they can chair the meeting then nominate and elect themselves. 

However, bear in mind that according to my highly reliable sources, about half of rental agents don’t bother to register changes of tenancy with the Owners Corp (despite a legal requirement to do so) and about 90 percent of private landlords are similarly slack – so how are you ever going to get to your 50 percent of residents being eligible tenants?

Anyway, here is the relevant section of the regs:

7 Tenant representatives: section 33 of Act

1. A person who is entitled to convene an annual general meeting of an owners corporation that has tenants for at least half of the number of lots in the scheme must convene a meeting of eligible tenants for the purpose of the nomination of a person for the position of tenant representative on the strata committee.
2. The person must give notice of the meeting to each eligible tenant at least 14 days before the annual general meeting and the tenants meeting may be held at any time before the annual general meeting, but not earlier than 7 days after notice of the meeting is given.
3. Notice may be given in one of the following ways:
      (a) by causing a copy of the notice to be prominently displayed on any notice board required to be maintained by or under the by-laws on some part of the common property
      (b) by written notice given to each eligible tenant.
4. The convenor of the meeting, or a tenant nominated by the eligible tenants present at the meeting, is to chair the tenants meeting.
5. An eligible tenant may nominate for, or nominate another eligible tenant for, nomination as the tenant representative at the meeting.
6. The tenant representative to be nominated by the eligible tenants for a strata scheme is to be determined by majority vote of tenants present at the meeting.
7. The quorum for the meeting is one person.
8. The term of a tenant representative commences at the end of the annual general meeting at which the nomination is received.
9. A person is an eligible tenant for the purposes of this Part if the tenant is a tenant notified in a tenancy notice given in accordance with the Act.

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[Jimmy-T]

It’s as simple as Peter says, if you don’t want to be secretary or even on the EC, just resign.

For the record, the regulations say this about nominations for EC elections:

A written or oral nomination made for the purposes of such an election is ineffective if it is made by a person other than the nominee unless it is supported by the consent of the nominee given:
(a) in writing, if the nominee is not present at the meeting, or
(b) orally, if the nominee is present at the meeting

A proxy vote is not a written consent to be nominated.

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[Jimmy-T]

If you don’t think this is going to ruin the look of the building, ask for a legally binding letter that states the installation is subject to approval at the next General Meeting, that the lot owners agrees to its ongoing maintenance and will remove the shutter immediately if the general meeting rejects the application for whatever reason.  If the lot owner is reluctant to comply with this temporary arrangement, just say no.

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[Jimmy-T]

I’m not 100 percent sure that the wall is common property.  have a look at the original plan and see if it is a thick black line (which means it is).

This in to something that should be rushed into.  I’m pretty sure you will need a DA from your local council (and don’t fall for the “complying development” nonsense – builders hand out certificates as if they were lollies).

It’s up to the owner who wants to make the changes to make the running and your committee shouldn’t approve anything unless there are guarantees tied to the lot – ie, if anything goes wrong, subsequent owners of that lo have to pay for it.

Talk to YOUR CHOICE of strata lawyer at the applicant’s expense.  Structure your approval so that the applicant is fully liable now and in the future and that the choice of surveyors is yours.  If they refuse, simply refuse to give them permission and, if necessary, seek interim orders at NCAT to prevent them doing the work.

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[Jimmy-T]

@Casuarina said:
In our 2009, NSW, 4 apartment strata scheme we very recently passed unanimously and registered a new by-law prohibiting pets. Less than a month later, I have heard that the real estate agent …  has been telling prospective purchasers who might have pets that under the new NSW strata laws, the by-laws can be challenged or overturned and that they will be able to get approval to keep pets. Is there any truth at all in this?

No.  The changes to the pet by-laws are in the “model” by-laws which only apply to new schemes and existing schemes that choose to adopt them through the normal process of a 75 percent vote at a General Meeting.  Every strata scheme has to have a mandatory review of its by-laws in the first year after the laws come into effect but that does not oblige anyone to change anything.

What action would you recommend?

Write to the principal of the RE agency and tell them you are concerned about reports you have heard.

Make it clear the building is resolutely “no pets” and that is unlikely to change any time soon, regardless of the provisions of the strata Act 2015.

Ask them to make sure their real estate agents are fully apprised of what will and won’t change in the new strata laws – including the fact that existing by-laws will not change.

Warn them that if any owner buys into the scheme on the erroneous basis that the scheme will be obliged to allow pets after the law changes, you will seek damages against the real estate agency that provided the false information to cover the cost of legal actions required to defend your by-laws.

Also, warn them that you will support the affected purchaser in any claims they may make for misleading conduct against any agency that gave them false information. 

That should just about do it.

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[Jimmy-T]

@annag26791 said:

The result isn’t 100% what we wanted but it’s a major step in the right direction and we can now get a dog!!!
 

It’s good that you got a result but I can’t help thinking that one small dog left alone is more likely to bark and cause a nuisance than two that can keep each other company. Best of luck with it.

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[Jimmy-T]

The bible on this, the SCA’s ‘Who’s Responsible’ document says this:

Any pipe, cable, ducting, plug or the like that is for the exclusive use of the lot, then if it breaks:

• Within the lot – Owners responsibility
• Outside the lot or in a wall, floor or ceiling that abuts to either common property or another lot – Owners Corporation responsibility

That means that any wiring inside an external wall, ceiling or floor, is Owners Corp responsibility and any thing outside the wall (such as a socket) or in an internal wall that doesn’t adjoin common property or another lot is the lot owner’s responsibility. 

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[Jimmy-T]

@Ray2U said:
In NSW there is nothing in the Act that provides for an owner to request any items be put onto a committee meeting agenda. Ironically the NSW Act is written this way to prevent harassment and bullying of committee members by a disgruntled owner. In NSW the committee may reasonably and legally ignore this type of request.

Point taken.  And maybe it is better to wait for the next AGM or, if you have the support of 25 percent of owners, call an EGM specifically to discuss bullying.

That said, if the bully operates on the fringes of socially and legally acceptable behaviour, then occasionally we are entitled to commit the odd professional foul too.

A section 138 request at NCAT for orders forcing the EC to consider the matter might well not be successful per se (depending on the Member) but getting the complaint on the record is what you are really looking for.  I hesitate to use the phrase “name and shame” as that is just another form of bullying, but it has its place when there is no other way of keeping bullies on a tight leash.

Personally, I think allegations of bullying are thrown around a little too easily, for instance, when people are legitimately criticised for failure to do their jobs properly.  

But there are people who are genuine victims of bullying and if the owners in a building elect bullies to positions of power then they have to accept some responsibility for what happens next.

Getting back to the point, an application to NCAT that’s doomed to failure, but which exposes the bullies in a block, is surely better than suffering in silence.
 

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