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@justsaying said:
Our AGM notice has a motion ” to extend the BM agreement for two years. ” as this appointment was not approved at a GM surely this motion is invalid.Would you be kind enough to state the exact wording/ section of the act re agreement as i cant find it.
There are three things you need to consider:
1. The EC can act on behalf of the Owners Corporation and make decisions EXCEPT where those decisions were originally made at a general meeting.
2. A General Meeting is superior to an EC meeting and therefore decisions can be made at a general meeting that supersede those made at an EC meeting.
3. Because of the above, any future appointment of a building manager must be made at a general meeting.
Apart fro m that, section 80B of the Act requires large strata schemes (more than 100 lots) to get two quotes for any expenditure over a figure set by the strata regulations (4.14) at $30,000. If your scheme is smaller than 100 lots, you don’t need to get two quotes (but there’s no harm in doing so).
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Or you could just wait until November 30 when the new strata laws include a regulation allowing Owners Corps to dispose of “abandoned goods”.
What are abandoned goods? Anything left on common property after a period specified in a removal notice has expired. The period must be not less than 48 hours.
The regulation (below) is very specific about the procedure but it allows Owners Corps to remove and even sell goods that have been left on common property without written permission.
Just one note of caution – these are draft regulations which means they may be changed before November 30. Keep and eye on THIS PAGE on the Fair Trading website for any updates.
Also because they are regulations, rather than a clause in the law, they may be changed at some point once everyone sees how the laws are working.
32 Disposal of abandoned goods: section 125 of the Act
(1) This clause applies to goods left on common property (other than motor vehicles and things permitted by the owners corporation to remain on common property).
(2) The owners corporation may dispose of goods left on common property if:
(a) a disposal notice has been placed on or near the goods and the goods have not been removed from the common property within the period specified in the disposal notice, or
(b) they are perishable goods, or
(c) they consist only of rubbish.
(3) A disposal notice must:
(a) not be less than the size of an A4 piece of paper, and
(b) be placed in a position or be in a material so that the contents of the notice are not likely to be detrimentally affected by weather, and
(c) describe the goods and state the date and time the notice was issued, and
(d) state that the goods will be disposed of if they are not removed from the common property before the date and time specified in the notice (being not earlier than 48 hours after the notice was placed on or near the goods), and
(e) specify contact details for a member of the strata committee in relation to the notice.
(4) If the goods are so placed that they block an entrance or exit, the owners corporation may move the goods to another place on the common property before placing a disposal notice on or near the goods, and for that purpose the owners corporation is taken to be the owner of the goods.
(5) The owners corporation may dispose of the goods by selling them or in any other lawful manner and for that purpose is taken to be the owner of the goods.
(6) A purchaser of goods sold by an owners corporation in accordance with this clause acquires a good title to the goods freed and discharged of any interest of any person who would otherwise have an interest in the goods.
(7) The proceeds of a sale of goods under this clause are to be paid to the administrative fund of the owners corporation.
(8) The owners corporation must make a record of goods sold under this clause and keep the record for a period of not less than 12 months after the disposal.
(9) The record must contain the following particulars: (a) a description of the goods, (b) the date of the sale, (c) the name and address of the purchaser, (d) if sold by auction, the address of the principal place of business of the auctioneer.
(10) In this clause: motor vehicle has the same meaning as in the Impounding Act 1993
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@Dudley said:
My questions are,
In looking at some posts in the forum the date of effect of the new Strata Scheme Management Act is not 1 July 2016, am I correct?
The new strata Act is due to come into force on November 30, with the exception of the Defects Bond regulations which have been postponed until some time next year.
Are we compelled to reappoint the strata manager?
This seems odd to me. Anyone else heard of this?
It seems as though we are expected to pass the motion and execute a written agreement at the meeting – even though we will not have seen it until the meeting. Is this correct?
That’s what they want you to do but unless the contracts has been circulated along with the agenda, you would be very unwise to do so.
I am assuming that the common seal is held by the Strata Manager – is this usual, and what is the protocol re common seal usage?
The strata manager usually holds the common seal on your behalf but they should not use it unless instructed by the EC or a general meeting (unless its use is covered by delegated powers, which may well be the case in your block)
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Worryingly, the Victorian decision referred to NSW law and pointed out that NCAT can overturn anti short-stay by-laws. Several lawyers have said that is unlikely but, as Millie pointed out (above) they have already done so and have publicised this on their own website.
They might not do this in every case but it would certainly be worth multi- apartment owners (about one-third of Airbnb hosts in Sydney) having a spin of the NCAT chocolate wheel.
I realise that this is a very specific case – a former hotel converted to strata units, – but here again is the relevant NCAT case study.
The order making power which an Adjudicator has under sections 157 and 159 of the Strata Schemes Management Act 1996 provides a means of redress where the original by-laws are changed in a way that may lead to an injustice.
A high-rise apartment building leasehold scheme located in Sydney’s Darling Harbour was managed by a large hotel group for some time, and a number of lot owners had made their apartments available for short-term holiday leases through the hotel group.
This situation changed when the hotel group vacated the building and an extraordinary general meeting of the owners voted to adopt a special by-law to prevent short-term leases and serviced apartments. The special by-law prohibited the use of lots for commercial or retail purposes, including the use of lots as serviced apartments or short-term rentals.
A lot owner made an application for Adjudicator orders to repeal or invalidate the special by-law under section 157 or 159 of the Act, so that they could continue to lease their apartment to tourists and visitors.
The owners corporation’s written submission stated that the use of serviced apartments and short-term leases created security, health and safety issues as well as adversely affecting the general amenity of the building.
Section 159 of the Act allows an Adjudicator to set aside a by-law if the owners’ corporation did not have the power to make the bylaw. However, section 49 of the Act also provides that a by-law cannot prevent any dealings relating to a lot.
The Adjudicator considered that the new special by-law led to restrictions that were not compatible with section 49, and was therefore outside the by-law making power of the owners corporation pursuant to section 159 of the Act. The Adjudicator also considered section 157 under which a special by-law can be repealed if it is considered that it should not have been made having regard to the interest of all lot owners in the use and enjoyment of their lots.
As the owners corporation did not provide any explanation or evidence in support of their statement, the Adjudicator was not convinced that the adoption of the special by-law was necessary for the good management of the property. Orders were made declaring the special by-law invalid.
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I wonder if it’s a simple as the committee, in writing, asking the developer to identify any defects in their lots – or allow a surveyor to so so – and to sign off on an agreement that they will not claim any defects in the future that do not exist at this time.
They will probably refuse, but at least you will have a paper trail for the day when they ask the other owners to pay for their defects out of your collective funds,
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I think you may be coming at this from slightly the wrong angle. The owners corp (you and the other owners) should be having a defects survey done and then making an official claim against the developer.
He has no legal responsibility to go looking for defects. But if you find them – major defects withing six years and non-major within two – he has a duty to fix them at his expense.
By the way, “non-major” is basically anything that is a defect but doesn’t mean the block or any part of it is uninhabitable.
Get a professional defects survey done before it is too late then present that to the developer along with a statement of claim.
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@Treacle said:
… what happens if we change Strata Managers?Change the chairman?
But seriously, if you felt you weren’t getting value for money from your strata manager, you could review the contract and ask the chair to recuse themselves from the vote.
If the chairman refused to do so, you could put a motion to your EC that the chair be vacated and a new chairman elected.
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Am I being naive, but if every unit is sold at roughly the same time, isn’t the sales price pretty much the same as the market value? Or was there some special deal concocted?
The obvious discrepancy is between 11c and 1c, neither having parking and the former being larger while having a 12 percent lower UE (and price).
It doesn’t on what basis the UEs were calculated, there seems to be a significant discrepancy (if my fragile arithmetic stands up) and it may be worth challenging, provided the cost of the challenge doesn’t outweigh the benefit accrued.
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It’s definitely different here – although if we said Unit 212 that would be the number on the door. But lot 3456 could be unit 212.
The problem with notifying unresolved disputes here arises if an owner puts forward a motions requesting a Notice To Comply be issued. There has to be clear evidence that the EC has considered the issue at a meeting, that it was on the agenda and the minutes, or NCAT won’t even look at it. That’s when the partial anonymity of lot numbers comes in handy.
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Are lot numbers and unit numbers the same in the ACT? They tend to be very different here, hence the anonymity they provide.
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@JimmyT said:
So forget the tenant and Housing NSW – there is a clear resentment from both parties towards owners – and focus on the lot owner. Forcing then to re-establish the unit as a studio will solve all your problems when the troublesome tenant moves out.Reading Whale’s, well-mapped plan of action with Housing NSW above, I withdraw my advice to “forget Housing NSW”. Add them to the list and follow the steps above. But it’s interesting that their first response to Whale’s complaints weren’t “I’m sorry if one of our tenants is behaving badly,” but “you can’t make us do anything” – something that was later shown to be untrue.
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I would start at the end. The owner has converted a studio to a two-bedder? Contact your local council as I would be surprised if this has a DA. It will also almost certainly be in contravention of strata laws and by-laws. If so, attack from every direction you can think of – planning department, Fair Trading and NCAT.
So forget the tenant and Housing NSW – there is a clear resentment from both parties towards owners – and focus on the lot owner. Forcing then to re-establish the unit as a studio will solve all your problems when the troublesome tenant moves out.
Oh, and if anyone from Housing NSW is reading this, we know what you are doing. You’re dumping problem tenants in residential blocks and then gleefully letting other people deal with it because you either don’t know or don’t care how much trouble you are causing.
Maybe you actually enjoy lowering the quality of life for people – renters and owners – who are just trying to make a go of things.
There’s nothing wrong with housing people in apartment blocks – just don’t expect the other residents to deal with the mess you have created because you can’t or won’t do your jobs properly.
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On the question of letting a room, Owners Corps can’t pass by-laws that a) conflict with superior laws and b) interfere with your “dealing” with your lot. This means they can ban short-stay lets of entire apartments (if the building’s zoning is residential only) but they can’t tell you what to do with rooms in your apartment (although new laws will allow OCs to set occupancy limits, provided the limit is no lower than two adults per bedroom).
So, in the first instance, point your committee in the direction of clause 49.1 of the strata Act.
49 Restrictions on by-laws
(1) By-law cannot prevent dealing relating to lot
No by-law is capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage, or other dealing relating to a lot.On the second point, take some pictures of committee members’ and other cars parked on common property then send them a polite letter inviting them to take you to Fair Trading mediation and then to NCAT so that you can all amicably resolve the issue by getting orders that NO owner can park on common property, including the owners of the following cars. Otherwise, they should stop harrassing you.
Re the bollards, send a letter to the committee pointing out that the bollards have rendered the parking garage area unfit for purpose and they need to remedy this under their duty to maintain and repair common property.
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Agree with Peter. You have two years in which to claim for “non-major” defects which can be very substantial but fall short of meaning the building or part of it isn’t fit for occupation. Call a meeting, get a defects survey done and make your claim.
Forget friendships and other relationships. A responsible and honest developer should be urging you to do this, rather than letting the clock run out so that their repair bill is reduced by 70 percent (with you and your other neighbours picking up the slack).
By the way, the developer has no special powers after the first AGM of the owners corp. They can use their votes like any other owners but their roles, as owners and developers, are quite separate.
If the developer has hi-jacked the committee, get enough signatures (in your case, probably two owners as long as their unit entitlements add up to a quarter of the total) to call an Extraordinary General Meeting to get this moving.
Remember the owners (in general meeting) are the bosses of the executive committee, not the other way round.
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