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I think the best thing you can do is sit down with this guy and have a chat with him and ask him what the problem is with the strata manager and the tenants – not because you intend to do anything about this, but because it’s easier in the long term to start off in a friendly relationship than at war with each other.
If the guy is receptive, tell him that you will listen to his complaints and pass them on to the committee. Maybe you could have a friend with you, just in case
If he is unreceptive and aggressive, tell him you are not prepared to put up with his behaviour and will take whatever steps necessary, including legal action.
Putting up rude and abusive notes, for instance, is a form of assault which can lead to police involvement.
Explain to him that he clearly has no idea how strata works and that he is not allowed to pass himself off as a caretaker (a role that has very specific duties under the strata Act) as that is fraud (it isn’t really but what the hey).
Tell him you have contacted strata experts and will be discussing with your strata manager how best to stop all the hassles.
Putting up notes on doors is interfering with common property and is against the by-laws.
Keep a diary of any negative interactions or events and be ready to go to the police to ask for an AVO (here’s how to do that). If there is a clear racial element, that can only strengthen your case.
And finally, invite your other neighbours round for housewarming drinks just so he and you know you are not alone.
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How old is the building – this makes all the difference as in pre-1974 buildings the windows are the lot owners responsibility.
Also, what do you mean by “my strata”? The strata manager, the executive committee? Who?
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Under section 149, an adjudicator can make orders varying contributions if they are considered to be unfair.
My reading of this – and you should check with a strata lawyer – would be that the amount payable for each lot be calculated based on unit entitlements and the owners then offered the opportunity to pay up in front or repay loans which would, of course, accrue interest. The people who paid up front would then be excused the loan repayment component from the levies.
If this is done openly and fairly, I can’t see why anyone would object and, if they did, why an adjudicator would support them.
Or you could reverse engineer that and if an individual or a group of owners wanted to pay up front, you could seek orders at NCAT to allow you to do so.
The only problem that might arise would be if the work cost less than estimated and it would require a unanimous vote to repay the funds. That, of course, is highly unlikely.
You could also contact our sponsors Lannock strata finance to see how they have handled this situation
149 Order for variation of contributions levied or manner of payment of contributions
(1) An Adjudicator may make either or both of the following orders if the Adjudicator considers that any amount levied or proposed to be levied by way of contributions is inadequate or excessive or that the manner of payment of contributions is unreasonable:
(a) an order for payment of contributions of a different amount,
(b) an order for payment of contributions in a different manner.
(2) If an Adjudicator considers that the consent of an owner referred to in section 77 has been unreasonably refused, the Adjudicator may make an order for payment of a different amount of one or more contributions levied or proposed to be levied by the owners corporation.
(3) If a contribution which is the subject of an order under this section has been wholly or partly paid:
(a) an order to pay more has effect as if the owners corporation had decided to levy a contribution equal to the difference, and
(b) an order to pay less imposes a duty on the owners corporation to refund the difference.
(4) An application for an order under this section may be made only by the lessor of a leasehold strata scheme, an owners corporation, an owner or by a mortgagee in possession (whether in person or not).
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Is this bogus caretaker a tenant (i.e. a renter) or an owner?
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@supersleuth said:
Thanks so much. I was concerned there for a little while because I am almost certain that the current EC members would vote for the current secretary. I believe that they wish to hold onto their positions on the Committee, so then to clarify, they wouldn’t be able to vote him (its a guy) in? It would take someone else not interested in going onto the committee?OK, let’s be clear on this. You have a person who is secretary who was not “financial” at the time the notice of the AGM was issued.
Unless they have cleared that debt – i.e. the money is in the bank – before the start of the AGM, they are not allowed to vote and they may not nominate themselves or anyone else.
However, they can be nominated by another person, provided that person is NOT standing for election themselves. In other words, they would have to be nominated by an owner who is not a candidate and who is financial.
Would they need to produce a levy notice that is paid or something like that?
All you have to do is ask for proof that the debt that existed when the notice of the meeting was issued has been cleared – that would be a receipt of some kind. If, after the meeting has started, they can’t prove they have paid the money, then they shouldn’t be allowed to vote.
The way to handle this is to wait until you get to the nominations procedure and say you understand that some of the candidates were not financial when the meeting notice was issued and you would like to know if they are financial now.
This will probably cause great confusion so I have posted the relevant sections of the strata Act below.
Could I also please ask about the difference between “nominating” and “voting”? It is my intention to vote for myself to gain a position on the EC. If I was successful, would I be able to use my friends proxy to vote for her or would someone present need to nominate her? I’m a bit confused…
A nomination is when an owner says they want to stand for election themselves or they name someone else who they want to be elected to the committee. You can nominate as many people as you want, provided you have their permission (in writing if they are not there).
A vote occurs after the nominations are received. Votes have to be in writing, signed by the person who voted.
The process is (or should be) that the chair calls for nominations.
Then the owners vote on how many people they want on the committee (to a maximum of nine).
Then, if there are more candidate than seats on the committee there is an election. If they are the same or fewer, all candidates are considered to have been elected and no vote is required.
The election should be conducted by each person voting writing the names of the people they want on the committee on a piece of paper. In your case you would have two pieces of paper, your own vote and your proxy (provided your friend has filled in the official proxy form)
NB: Your secretary will only fail to be nominated if his only supporters are either standing for election or are unfinancial themselves.
Just as a general note, allowing for the cashflow problems that we all face from time to time, and this may be a temporary aberration, I would be worried if the secretary was always behind with his levies.
I think it is very unhealthy for an office-bearer to be perpetually behind on their contributions, considering how much influence they can have when it comes to setting levies for the whole building.
I would want to know that the sinking fund and admin funds, as well as the forward maintenance plans were in good shape before I was comfortable with someone who was always in debt was elected to such a key position.
Could I also please ask what section of the Act/Law “restriction on moving motion or nominating candidate and Voting rights may not be exercised if contributions not paid” is located and I am certain that they will argue against it…
Strata Schemes Management Act 1996
Schedule 2 Meetings and procedure of owners corporation
Part 2 Provisions relating to procedure for meetings
Division 1 General provisions relating to procedure for meetings
9 Restriction on moving motion or nominating candidate
(1) A person is not entitled to move a motion at a meeting or to nominate a candidate for election as a member of the executive committee unless the person is entitled to vote on the motion or at the election.
10 Persons entitled to vote at general meetings
(8) Voting rights may not be exercised if contributions not paid
A vote at a general meeting … does not count unless payment has been made before the meeting of all contributions levied on the owner, and any other amounts recoverable from the owner, in relation to the lot that are owing at the date of the notice for 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.
Don’t resign – that’s how these people get to stay in control. If this strata manager is not a statutory appointment, then he is a dinosaur who really shouldn’t be operating in this day and age.
Send a letter to the strata manager asking on what grounds the EC can’t make any decisions.
If he is a statutory appointment, that’s one thing but if he is saying, for instance, that the Owners Corp has delegated all function to him, as many do, the EC can at any time supersede the Strata Manager.
If he is not a statutory appointment, then he has seriously misled owners and that is a sackable offence.
That’s the law. He has to do what you tell him, not the other way round.
Ask the strata manager if he is a member of SCA and if not, why not.
Ask him on what grounds you are not being given access to the strata roll as this is a clear contravention of section 108 of the strata Act (below).
Ask the manager if he has heard of the principle of “prevention is better than cure” in regard to your tree issue.
Ask the strata manager for a copy of the management agreement under which he was appointed.
You may be in a block where the EC’s only concern is to keep levies low. However, you collectively have a legal obligation to maintain and repair common property that your strata manager shouldn’t be helping your owners to shirk.
He probably does this becasue it keeps him onside with the owners. However, we are right in the middle of a major review of strata law and there is no place for old school thinking, especially when your EC isn’t covered by insurance.
Division 4 Inspection of records and issue of certificates
108 Inspection of records of owners corporation
(1) Who may inspect records?
An owner, mortgagee or covenant chargee of a lot, or a person authorised by the owner, mortgagee or covenant chargee, may request the owners corporation to allow an inspection to be carried out under this section.(2) Form of request
The request must be in writing and be accompanied by the fee prescribed by the regulations.(3) Items to be made available for inspection
The owners corporation must make the following items available for inspection by the person who makes the request or the person’s agent:(a) the strata roll,
(b) any records or documents required to be kept under Division 2,
(c) the plans, specifications, certificates, diagrams and other documents required to be delivered to the owners corporation at its first annual general meeting by the original owner or lessor,
(d) if in its custody or under its control, the certificate of title comprising the common property or, in the case of a leasehold strata scheme, the certificate of title for the lease of the common property,
(e) the last financial statements prepared,
(f) every current policy of insurance taken out by the owners corporation and the receipt for the premium last paid for each such policy,
(g) any other record or document in the custody or under the control of the owners corporation,
(h) if the duties of the owners corporation under this subsection have been delegated to a strata managing agent, such other records (including records of the strata managing agent) relating to the strata scheme as may be prescribed by the regulations,
(i) if a caretaker agreement is in force or has been entered into but has not yet commenced, a copy of the caretaker agreement.
Maximum penalty: 2 penalty units.
(4) Inspection to take place at agreed place and time
The inspection is to take place at such time and place as may be agreed on and, failing agreement, at the parcel at a time and on a date fixed by the owners corporation under subsection (5).(5) Time and place of inspection if agreement not reached
If an applicant and the owners corporation fail to reach an agreement within 3 days after the owners corporation receives the application, the owners corporation must immediately send by post to the applicant a notice fixing a specified time (between 9 am and 8 pm) on a specified date (not later than 10 days after the owners corporation receives the application).(6) Copies of documents may be taken
A person entitled to inspect a document under this section may take extracts from, or make a copy of, the document but must not, without the consent of the owners corporation, remove the document from the custody 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.
@Susanp said:
The first thing the SM said to the owners at the AGM that I attended, was that we could be on the EC but that we would do absolutely nothing? The other owners appeared to be accepting of this.Is your Strata Manager a statutory appointment (probably due to mismanagement of the scheme by a previous EC)? It certainly sounds like it.
If that’s the case, then they do have absolute power and all you and your fellow owners can do is act responsibly, have your committee meeting in a purely advisory capacity and hope that you can take back control of your building when the statutory appointment runs out and you have proved yourselves to be good strata citizens.
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Just to confirm Peter’s last point, there is a difference between what can be done and what should be done.
It’s proper procedure for the EC to approve removal of the tree and pay for it.
However, if a motion goes to them to allow removal at your expense, who is losing if they agree?
I would put a motion to the next meeting along those lines (subject to council approval) and have a quiet word in the secretary’s ear that your other option is to seek orders at NCAT under section 140 and/or 140A (below), meaning they would have to remove the tree at their expense.
If nothing else, putting a motion to the meeting starts the clock ticking under section 140, meaning they have two months to do something or face an NCAT action.
140 Order relating to alterations and repairs to common property and other property
(1) An Adjudicator may order an owners corporation to consent to work proposed to be carried out by an owner if the Adjudicator considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following:
(a) alterations to common property directly affecting the owner’s lot,
(b) carrying out repairs to common property or any other property of the owners corporation directly affecting the owner’s lot.
(2) An Adjudicator may make an order approving of alterations or repairs already made by an owner to common property or any other property of an owners corporation directly affecting the owner’s lot if the Adjudicator considers that the owners corporation unreasonably refused its consent to the alteration or repairs.
(3) An order under subsection (2) is taken to be the consent of the owners corporation to the alterations or repairs concerned and may be expressed as having effect from a day specified in the order that occurred before the order was made.
(4) An Adjudicator may specify in an order under this section whether the owners corporation or the owner of the lot concerned has the ongoing responsibility for the repair and maintenance of any additional property arising out of an alteration or repair to common property approved under the order.
(5) If an order makes provision for the owner of a lot to have the ongoing responsibility for the repair and maintenance of any such additional property, the order also has effect in relation to any subsequent owner of the lot.
(6) In deciding whether to grant an order under subsection (2) or to provide for the order to have effect from a day that occurred before the date of the order, an Adjudicator may take into account the conduct of the parties in the proceedings, for example, if an owner did not first seek the consent of the owners corporation before carrying out the alterations or repairs.
(7) An application for an order under this section may be made only by a lessor of a leasehold strata scheme or an owner.
140A Order requiring owners corporation to install window safety devices
(1) An Adjudicator may order an owners corporation to exercise a function under section 64A if the Adjudicator considers that the owners corporation has failed to do so.
(2) For the purposes of this section, an owners corporation is taken to have failed to exercise a function if application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function.
(3) An application for an order under this section may be made by an interested person (other than an owners corporation).
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I agree with Peter, that seems odd and merits further inquiry.
Some insurance policies have exclusions on EC insurance, such as for defamation, because internal politics can become quite nasty and very few people understand the limitations of free speech and fair comment, under the law.
Other insurance policies will reduce premiums by having an excess so that the first few hundred of any claim is covered by the owners corp.
Admittedly the new laws in NSW excuse liability of individual EC members who have acted in good faith.
But if you have, say, a secretary who allows changes to common property on a nod and a wink, and the EC is aware that proper procedure is not being followed, you could be up for tens of thousands of dollars in damages if things go wrong.
Similarly, if the EC has been told by a qualified person that there is a problem, but they decide to do nothing about it and hope nothing happens, then they are not acting in good faith and could be liable if disaster happens.
It’s a minefield – your EC really needs to look at your insurance policy and ask themselves if it’s worth potentially losing thousands of dollars just to save a few bucks. Personally, I wouldn’t serve on an EC that didn’t have proper insurance.
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@oldandtired said:
by law 22. An owner, occupier or invitees of a lot must not post material that could reasonably be expected to cause offense or embarrassment ….OK, thanks for that. A few points:
You don’t know that it’s the EC members who are taking down notices (but it’s not a bad guess). However, it could be people who support them or other owners who simply don’t like seeing the scheme’s dirty laundry aired in public.
Chances are that this is one EC member, acting independently, thinking they have the authority to do so.
Is the wording of the the notices offensive. Emotive terms like “irrational” or “disgraceful”, let alone words like “corrupt”, could offend some people.
But let’s assume that your notices are not offensive. What can you do?
You could put a motion to the EC that they define “offense or embarrassment” as per your by-law to allow for healthy debate while excluding personal attacks and profanity. You might point out in discussions that any EC member who takes down a non-offensive notice is in breach of your by-laws because they do allow notices to be posted.
Alternatively, run a number of copies of your notices and every time it’s taken down, you put another one up with the additional line of “This is the second [or third or fourth] copy of this notice which is being removed by people who don’t want you to know what’s going on.”
Then, every time someone takes the notice down, it strengthens your argument.
I ran a successful noticeboard campaign a few years ago against one of our EC’s more lunatic ideas – and I did so because the information they were giving the owners was just a pack of lies, plain and simple. I used the above technique, my posters stayed up and we won. (Although they had the last laugh when they moved the noticeboard to somewhere fewer people would see it).
Finally, if you think it’s worth the effort, create a little website or blog called http://www.[name or address of your building]facts.com then keep all your arguments online but just post little notes on your noticeboard every so often that say “Because of censorship of this noticeboard, the truth about what’s happening in this building can now be found on www. [yourbuilding]facts .com.”
Website companies like Crazydomains.com.au will provide a website plus hosting for less than $4 a month and a .com domain name for $12.50 a year. Domains ending in .com.au are more expensive.
But whatever your means of communication, try to avoid personal attacks, moderate your language and be aware of defamatory accusations.
Noticeboards are a great way of stimulating discussion in a community. They should not be censored but neither should they be the vehicle for personal attacks, vendettas and crazy conspiracy theories. That’s what the internet is for.
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@supersleuth said:
Our current secretary has been in their position for 9 years & in my opinion, is awful. Our AGM is next week & I have seen that of the date of notice, they are in arrears of. their levies. Can they be voted back onto the EC?Anyone can be voted on to the EC provided they are nominated by someone who is entitled to do so.
However, owners can’t nominate themselves or anyone else, or vote on any matters, unless they are “entitled to vote” (see below). I note you use the word “they” if this lady is a co-owner, she can’t nominate herself anyway and if they are in arrears, her partner can’t nominate her either.
She certainly can’t vote for herself or anyone else and anyone else standing for election can’t nominate her either.
So, if she hasn’t paid up by the START of the meeting, unless she is nominated by someone who isn’t standing for election and isn’t in arrears too, then her nomination would fail.
By the way, it is generally accepted these days that presenting a cheque or even cash at the start of a meeting doesn’t clear your debt. The money has to be in the bank.
Most strata managers won’t accept payments of any kind at the meeting and, if they do, the law (below) says payment must be made BEFORE the meeting. You might have to play your cards close to your chest on this, if you plan to ambush the secretary on the night.
Restriction on moving motion or nominating candidate
(1) A person is not entitled to move a motion at a meeting or to nominate a candidate for election as a member of the executive committee unless the person is entitled to vote on the motion or at the election.
Voting rights may not be exercised if contributions not paid
A vote at a general meeting … does not count unless payment has been made before the meeting of all contributions levied on the owner, and any other amounts recoverable from the owner, in relation to the lot that are owing at the date of the notice for the meeting.
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You haven’t really answered my question. Is there a by-law related to the noticeboard and what does it say?
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Is the notice board there as required in your by-laws? The answer differs depending on whether it is or isn’t.
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Send a motion to the EC for discussion at their next meeting. Something like: “The Committee should consider traffic arrangements for entry to and egresss from the parking garage with a view to restoring the access road to driving on the left, now that contact keys are no longer required.”
Your committee is probably going to hate this because it will require a re-education program, with every driver needing to be informed of the change, not to mention signage, all for very valid safety reasons. And that means a cost and that’s why the status quo will be favoured.
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Bear in mind that an owner can nominate themselves but can’t be nominated by someone who is standing for election. That means you can’t nominate your friend (but you can vote for her and yourself and use her proxy to do likewise).
Also, co-owners can’t nominate themselves but can be nominated by the other co-owner.
Basically, you need a letter from the other person, nominating themselves (or from their co-owner nominating them) plus a signed and dated proxy form allowing you to vote on her behalf.
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