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Getting back to the original question from Annag26791, the key issue is whether or not the refusals are unreasonable. “We have never allowed pets” is not a reasonable refusal – it’s just a statement of historical fact. The by-laws allow for pets, albeit under restricted circumstances.
However, having a resident who is allergic to cats or terrified of dogs may be a valid reason for refusal, as would a poll of owners that clearly stated the majority of owners didn’t want animals in the building.
The real problem for most buildings is that there will be people on the committee don’t want change but can’t even be bothered to consolidate anti-pet sentiment with a full pet ban by-law. In many cases they probably realise they won’t get the support they need.
It is worth taking this to NCAT – and that means time, energy and becoming unpopular with your committee – because it forces the committee to justify their refusal with logic and reason, rather than prejudice and contempt.
Be prepared for long-winded claims that the animals will be filthy, noisy and a nuisance. These can all be countered by pointing to other areas of the Act that deal with noise, damage and behaviour on Common Property. There is even a specific clause (151) for dealing with animals that have been approved but which have since proved to be a nuisance or hazard to residents.
Meanwhile, have a look at this story and video: It shows how a determined couple took on a building with messy anti-pet by-laws and won.
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Your strata manager should ask for permission to inspect the changes with regard to fire safety and the interruption of internet services.
If (when) the owner refuses, the EC should vote to apply to NCAT for an order, permitting access. If the owner still refuses, they can be fined by NCAT but this is a token amout.
At this point I would seriously consider cutting off their electricity until such times as they can prove to a qualified person that their lights have been properly and safely installed.
Once you have assessed the form and extent of the changes, you can ask the owner to provide a legally binding undertaking that they and subsequent owners of the lot will be responsible for the maintenance of the new installation.
If they refuse, you start proceedings at NCAT to force them to agree to take responsibility for the wiring in the ceiling or remove it.
Just to be clear, light fittings are the owners responsibility but the cabling in the ceiling and walls is OC responsibility and you can’t be responsible for something when you don’t know what it is.
This person is only one voice and one vote on the committee. Present them with the facts and the relevant laws, perhaps in a written report from the strata manager, and ask them to comply with the law.
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And just to add my full reimbursable two cents worth, the payments that aren’t allowed are those for future work done. Payments to EC members can only be made retrospectively and have to be approved at a general meeting.
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This is bullying of the worst kind. The prospective land-grabbers’ arguments are spurious, not least because nobody can predict how NCAT is going to act, even when arguments are clear cut (and these certainly aren’t).
That said, my money would be on NCAT rejecting their demands.
The need for funds is totally irrelevant and I would be telling these people, in no uncertain terms, that regardless of the merits of their case (which are highly dubious) their methods – including misinformation and deliberate ingenuousness – undermine their cases.
You could put a very, very high price on the property – but I wouldn’t even go there. Don’t open that discussion. Tell them to take you to NCAT and say you will not only challenge their call but you will ask for all costs to be awarded against them.
If they want a unit with a garden that badly, there are plenty on the market.
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My understanding is that pre-1996 schemes come under the standard model by-laws EXCEPT where a special by-law has been created, which would seem to be the case in your scheme.
Your best bet is to canvass all the other owners to have your by-laws updated (something the government wants us all to do anyway) and to include the pet by-laws that allow pets with permission that must not be reasonably refused.
This is not up to the Executive Committee (although they can make it harder to do). You need to get enough signatures to call an Extraordinary General meeting (25 percent of owners) and then persuade 75 percent of the owners voting at the general meeting to adopt the new by-law.
Bear in mind that the EC members will have zero interest in doing anything that may mean more work for them with no obvious benefit.
You could start your campaign by putting a motion to the EC with accompanying material about the benefits of pets and the fact that apartments that ban pets can suffer a 10-15 percent reduction in value. There is a stack of material around that shows the social, financial and personal health benefits of pet ownership.
No one that I know has been evicted for pet ownership but they have been driven out. The way it works is that you get a Notice to Comply, but you don’t. The EC goes to the tribunal and asks for a fine, (probably about $200). You pay it. They go through the process again, but this time they ask for orders and that’s when you have some hard decisions to make. The fines for ignoring NCAT orders can be hefty and they get higher every time you ignore them.
Needless to say, this can get expensive and stressful (for both sides) but it does buy you some time for the new laws to come in and, for instance, for proxy farming to be eradicated, improving your chances of getting a majority on your side.
However, a much better tactic for all concerned is to go to the EC and ask if they will allow you to organise an EGM at your expense (assuming your AGM isn’t any time soon), so that owners can discuss the appropriateness of this 1995 by-law and whether or not they want to change it.
If the EC refuses, start your own campaign by appealing directly to other owners and you can demand an EGM by getting the sgnatures of 25 percent of owners.
It’s worth noting that I got into this whole strata thing because we were told that our off-the-plan apartment would be pet-friendly but the autocratic chairman and his committee of cronies decided to ban pets.
What that did was to unite pet owners who might never have spoken to each other and not only did we get our pets in, they pet owners took over running the building and uncovered all sorts of dodgy deals as well as out-and-out corruption.
So talk to the committee about raising the issue, don’t allow yourself to be fobbed off, campaign constructively and positively, be ready for some serious resistance and be prepared to look for somewhere else to live if the majority of people in the block still don’t want pets.
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@micksik said:
This was there response via email: “No owners have been given permission, we can’t approve a breach of the by law. If there are complaints of animals in breach of the by law then they are acted on.”We’re not sure what to do now either. Give up our dog or not move in?
What does the by-law actually say? If it is the standard “May not have a pet without permission …” then you still have a lot of leeway. If it says “may not have pets” period, then you have a problem.
Regarding the article you quoted, it’s very informative about the law but short of specific advice.
Just bear in mind that when the new strata laws come into effect in November, strata committees have to put their reasons for refusing pets in writing. And, increasingly, just saying “we haven’t allowed this pet because we have never allowed pets” is not considered “reasonable”.
I would move in with the pet (since you are halfway there already) and by the time it gets to a tribunal you should have gathered enough evidence to prove that the pooch is not a problem. However, if it behaves badly and annoys your neighbours (and not just by its presence), then it – or you – will have to go.
Committees that go to tribunal working on an unproven assumption that every dog will behave badly are (ahem) barking up the wrong tree.
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Just to unpack this question:
1. The chair had her apartment rewired without prior consultation with the other owners.
2. The other owners had previously done this at their own expense
3. The chair says the wiring was a fire hazard.
In the absence of independent corroboration of item 3, is it reasonable to assume that the wiring was unsafe?
Even if this was the case, the lot owner changed common property without Owners Corp knowledge or approval. Worst-case scenario, she could have had a cheap job done and it might be even less safe than before.
I think you have two options here:
1. You tell the chair that she has to pay for this herself – she has interfered with common property without permission – and accept a by-law that she and subsequent owners of her lot take responsibility for the wiring.
or
2. In a spirit of friendly cooperation, she agrees to pay one quarter of the cost of everyone else’s rewiring.
I would certainly take this to a tribunal, if need be, since she is basically using her position to line her own pockets. Typically, chairs in small unit blocks feel entitled to do this because of “all the work I do for the building”.
She isn’t.
Finally, you need to get the other owners onside. The sooner you have an EC meeting, declare the chair vacant and elect someone else, the better. Just be ready for frosty looks in the stairwell.
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OK, first of all, although you can use Roberts Rules as a guideline, they only really apply if at some point your Owners Corp has agreed to use them for committee meetings.
This brings me to one of my old hobby-horses, that there should be standing orders, designed for strata committees, that Owners Corps can take off-the-shelf so ECs can adopt them for meeting procedures.
On this question specifically, in the absence of agreed procedures or legal requirements, there are three options open to general meetings; approve, deny or rule out of order.
The Chair can rule a motion out of order if it conflicts with strata law, by-laws or would be illegal or unenforceable (see Part 1, Division 1, Section 14 of the SSMA, below). The question of deferment is moot. Anything can be considered at the next AGM provided it is on the agenda.
A more reliable motion would be an amendment to consider the issue at the next EGM or AGM or even to convene an EGM specifically for that purpose.
The key to this is that the owners have been asked to consider a proposal which should have been attached to the agenda but which wasn’t. Whether you apply Roberts Rules or Murphy’s Law, if it was passed, anyone who objected could go to NCAT and ask for orders rescinding the decision and, even in the lucky dip of the tribunal, they would probably succeed.
For that reason if no other, if I were chair, I would have firstly ruled the motion out of order and secondly, gone looking for retribution against the person who didn’t put the contract out with the agenda. If the strata managers were at fault, I would be asking them to pay for an EGM or face having their contract torn up for simple incompetence (with a hint of dodginess).
If it was the secretary of the EC, I would be asking them and their colleagues on the EC to consider whether they were the best person for the job.
Rhe second part of section 3
14 Motions out of order
The chairperson at a general meeting of an owners corporation may rule a motion out of order if:
(a) the chairperson considers that the motion, if carried, would conflict with this Act or the by-laws or would otherwise be unlawful or unenforceable, or
(b) except in relation to a motion to amend a motion, clause 35 (3) has not been complied with in relation to the motion.
35 Forms of motions
(3) A motion must not be submitted at a general meeting unless notice of the motion has been given … or [it] is a motion to amend a motion of which notice has so been given.
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@justsaying said:
I have never had to to apply to NCAT for permission and I dont believe the OC has either.
You need to apply for permission to be represented by a lawyer, or anyone else, for that matter. The following is from the NCAT website:
Representation
NCAT is designed for people to represent themselves at hearing. This provides a low cost, accessible and efficient means of resolving your dispute.
At NCAT parties are encouraged to conduct your own case without representation. Although this may seem daunting, you can expect to have your matter heard and determined fairly and according to law.
Representing yourself also has its benefits by giving you direct control on how your case is presented to NCAT. With the right preparation and organisation, you can be your own best advocate at the hearing.
Requests for representation
A request to be represented must be in writing and contain the following information:
- The file number and parties’ names
- The reason why you are seeking to be represented
- The name and occupation of the proposed representative and whether or not that person is a lawyer/solicitor
- A statement that the proposed representative has your permission to make decisions in your absence that are binding on you.
You can apply to be represented in writing before the matter is heard or you can apply at a hearing. the Tribunal Member will decide on the day if you can be represented.
Your representative may be a lawyer, a real estate agent on behalf of a landlord, an advocate, friend or relative provided you authorise them to act on your behalf and allow them to make a decision at the hearing on your behalf.
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@justsaying said:
Thanks, interesting comments and quite depressing! I agree most people dont care….until it impacts on them, then its different! It confirms my opinion and clarifies why so many find strata living is becoming such a hostile environment .You have posted a number of questions on a number of topics so you are clearly unhappy with your current situation. This is not exclusive to apartment living. In fact, it is arguable that it’s harder when you live in a house with a nasty neighbour … then you really are on your own.
I think when the Strata Act was implemented there wasnt enough thought into the way one is compromished unless one accepts that cowboys rule the day.
The fundamentals of the current Act were written 50 years ago. No one could have anticipated the growth of strata to its current levels. However, everything changes on November 30th when the new laws come in.
Most law abiding owners are horrified that common law is thrown out the window in Strata.
Common law can’t be “thrown out of the window”. Strata by-laws can’t subvert superior laws.
Mortified if one dares to speak out and be branded a pain the backside” or worse!! To find oneself having to knock on doors to get support with the knowledge that the EC Secretary has all owners details at their fingertips and usually has already canvessed for votes.
Most people mostly act out of self-interest: it’s human nature and certainly not exclusive to strata. Only you can decide if your issues with your committee are worth the effort of trying to change people’s minds.
To challenge this particular act is largely untested and given the threat of having to pay OC costs if you challenge. NCAT decisions its easy to understand reluctance to persue these hellish and vindictive EC’s.
Paying the owners corp costs is highly unlikely if you have a strong case. Just be sure of your grounds before you act.
There is no lobbying to amend the law to improve this area its all about developers, selling off etc etc.
The laws are changing on November 30, largely as a result of people like OCN, strata managers and lawyers, and, dare I say it, this website and its associated newspaper column demanding change.
there is no legal aid available as in other sections of law.
NCAT is designed to be a low-cost option that doesn’t need legal representation. That’s why both sides have to apply for permission to use lawyers.
For those curious, in NSW lawyers charge you for them to call you @ $88.00 per hour plus the costs of around $5000.00 for a simple case with no certainty of a positive result.
Most strata lawyers will give you an brief, instant assessment, free of charge, of whether they think you have case worth pursuing. But no lawyers in any field guarantee results. That’s why they always “offer opinions” rather than state facts.
Apologises to those wonderful schemes who do act with integrity , respect and transparency you are the diamonds in the rough!
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As we often point out on this website, there are no StrataKops patrolling our high-rises, waiting to pounce on anyone who infringes the law or by-laws.
In fact, there are very few strata laws that carry penalties for specific breaches and even then they are routinely ignored. In terms of owners, you can be fined for not registering a new tenant (Maximum $550) or for not giving your tenants a copy of the by-laws ( max $110). Hardly anyone obeys these rules but even if you could prove it you would have to take the owner to NCAT to have the fines imposed.
At the end of the day, whether there are specific penalties or not, you either have to persuade enough other owners to get rid of your committee or you have to get NCAT to either order the committee to act properly or have them replaced by a strata manager (and that’s a whole other can of worms).
The easiest way to get rid of a bad committee is to get your fellow owners onside by persuading them that your committee is costing them money, either through excessive or unnecessary expenditure, or through allowing the value of the property to be eroded through neglect.
Challenging them on a point of principle simply isn’t going to fly for the simple reason that nobody cares.
In fact, the hardest thing to do is to change the committee by being a pain in the backside over technical breaches that no one else cares about. As soon as you set off down that road, the committee will point at you and say “look, this owner is just being a pain in the backside … and here’s the proof.”
Let’s for example take an AGM where someone who should have voted is wrongly not allowed to vote (because they are against the powers that be). You can apply to have the vote overturned but only if that blocked vote would have made a difference to the outcome and if you challenge it withing 28 days.
Just as examples, have a look at sections 153 and 154 (below) – there are so many avenues there, and in other aspects of the Act, that allow adjudicators to refuse to take action, one of them being that they don’t consider anyone was adversely affected.
This puts the onus back on you to effect the change within the Owners Corporation or, as they say, suck it up. If you take the former choice, my advice would be to not make it personal, be utterly sure of your ground and make sure you have the numbers before you do anything drastic.
One weapon is communication – a little website or newsletter that provides information, asks questions and, importantly, provides answers can go a long way to effecting change.
153 Order invalidating resolution of owners corporation
(1) An Adjudicator may make an order invalidating any resolution of, or election held by, the persons present at a meeting of an owners corporation if the Adjudicator considers that the provisions of this Act have not been complied with in relation to the meeting.
(2) An Adjudicator may refuse to make an order under this section but only if the Adjudicator considers:
(a) that the failure to comply with the provisions of this Act did not adversely affect any person, and
(b) that compliance with the provisions of this Act would not have resulted in a failure to pass the resolution or have affected the result of the election.
(3) An application for an order under this section may be made only by an owner or first mortgagee of a lot.
154 Order where voting rights denied or due notice of item of business not given
(1) An Adjudicator may order that a resolution passed at a general meeting of an owners corporation be treated as a nullity on and from the date of the order if satisfied that the resolution would not have been passed but for the fact that the applicant for the order:
(a) was improperly denied a vote on the motion for the resolution, or
(b) was not given due notice of the item of business in relation to which the resolution was passed.
(2) An application for an order under this section may not be made after 28 days after the date of the meeting at which the resolution was passed.
(3) If an order under this section is made in relation to a resolution making a by-law or amending or repealing another by-law and the order has been recorded as provided by section 209, the by-laws have force and effect on and from the date the order is so recorded to the same extent as they would have had if the resolution had not been passed.
(4) Subsection (3) is subject to the by-laws having been or being amended or repealed in accordance with this Act and to any relevant order made by a superior court.
(5) An application for an order under this section may be made only by a person entitled to vote on the motion for the resolution concerned.
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