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@Whale said:
Jimmy T. may want to untangle the mess that you’ve created (because I can’t), but on the subject of an Owners Corporation’s (O/C) personal property…..
Yes, I am confused too. It seems to me that we have a situation where some units have pergolas and some don’t. Some of the existing pergolas are common property and some aren’t, although all of them have been maintained as if they were common property.
Now the owners corp has passed a special resolution absorbing the non common property pergolas into the common property. Why? Perhaps it’s just to stop squabbling.
Certainly the people who don’t have pergolas have a right to feel aggrieved if they are just legitimising costs that shouldn’t be charged to the OC. And that is the nub of the argument – not whether or not pergolas are personal property.
If the existing common property pergolas are not accruing additional levies through higher Unit Entitlements the Non-Pergola (NP) owners are being cheated. The fact that non common property pergolas were being maintained means everyone else was being cheated.
The simple answer is to seek dispute resolution through NCAT (Section 138) whereby everyone who has a pergola has to pay for its upkeep one way or another and those who don’t have one don’t have to pay. This might however result in a recalculation of Unit Entitlements and that’s another can of very wriggly worms.
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@Tess McGill said:
It does concern me that people who seem to have a role in society assisting people with their health (medical staff) can’t differentiate between bin types, or grasp the principles of rubbish disposal. Not the sort of people you want giving medical advice…..You have identified one of the fundamental reasons short-stay lets should not be allowed in residential buildings. There is zero sense of responsibility among fly-by-night residents to discover the basic rules – written and unwritten – of a building and then abide by them.
I dread what concoction of populist and and trendy, half-baked legislation we will be faced with when NSW parliament finally comes up with a “solution” to the spread of short-stay letting.
In fact, the solution is already there in our council zoning and any legislation that tampers with the status quo will be fixing something that isn’t really broken.
Just support the existing laws and stop pandering to businesses that present themselves as a caring, sharing hug-fest when the reality is that they are a multinational corporation that has made a substantial chunk of its billions by helping greedy investors to break the law and avoid paying tax.
Our politicians are so blinded by popular opinion and what’s trending on social media that they can’t see what’s right in front of them.
They seem to live in this fantasy land where, despite all the evidence to the contrary, everyone who goes out for a drink late at night is a violent thug whereas everyone who sets foot in strata, even for a weekend, is a model citizen who would never dream of upsetting their neighbours.
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I thought not – I was surprised we do!
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The simple answer, in NSW, is no.
If that action was brought under Chapter 5 of the Act which relates to disputes and orders by the tribunal, the Owners Corp can’t pay costs out of the sinking or admin funds and must collect a special levy which excludes the successful party
This is what section 230 says. There may be other conditions in the order, or is may have been raised under a different part of the Act (unlikely) but this is the basic rule.
230 Restrictions on owners corporation levying contributions for expenses
(1) An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it under Chapter 5, levy a contribution on another party who is successful in the proceedings.
(2) An owners corporation that is unsuccessful in proceedings brought by or against it under Chapter 5 cannot pay any part of its costs and expenses in the proceedings from its administrative fund or sinking fund, but may make a levy for the purpose.
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You really are between a rock and a hard place. The first thing you need to do is sort out the strata manager. If she is not prepared to do her job, then she should resign, otherwise you can complain to Fair Trading.
Secondly, you should tell her in detail (and in writing) what needs to be done including raising a special levy or a loan to pay for it. It’s important to get this in writing as that’s when the clock starts ticking.
Meanwhile, tell her if he hasn’t acted on pursuing the strata scheme’s legal responsibilities within two months, you will seek orders at NCAT under section 138 forcing her to do so.
Strata managers have so much power under a statutory appointment that she could sort all of this out – provided she is prepared to put up with the tsunami of abuse that is inevitably coming her way.
However, if she isn’t being paid enough for all this grief, she should start charging for answering abusive emails and listening to abusive phone calls – and send you and your neighbours a letter explaining that she plans to do this.
If she is a member of Strata Community Australia, contact them and ask them to support her, if need be. If she isn’t, I would do my best to get rid of her and have her replaced by someone who is.
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@grahamd said:
This is my first post so please forgive me if this is the wrong forum or format.
Right forum, right format and not only that, a nice, short subject heading. Given that some people are posting questions where the heading is longer than the content, you ought to get a medal.
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Your Owners Corp is quite possibly breaking the law and could be fined up to $550.
Unless the person doing the books has been elected treasurer (strata Act Section 18a), is a delegated strata manager (18b) or appointed by the executive committee to help the treasurer (18c) or is a qualified accountant who has been appointed by the Owners Corp (18d and d1), they shouldn’t be touching your finances.
It’s quite possible that your strata manager actually does all the heavy lifting regarding the finances but this non-elected person is treading on thin ice if they are issuing reports with their name on them.
This is what the Act says:
24 Who can exercise functions relating to the finances and accounts of the owners corporation?
A person must not exercise any of the functions of an owners corporation or the treasurer of an owners corporation relating to the receipt or expenditure of, or the accounting for, money of the owners corporation or the keeping of the books of account of the owners corporation unless the person is:
(a) a member of the owners corporation or of the executive committee and the treasurer of the owners corporation or of the executive committee, or
(b) a strata managing agent who is empowered to exercise that function, or
(c) a person with whom the treasurer of the owners corporation is required by an order of the executive committee to exercise that function jointly, and who is enabling the treasurer to comply with the order, or
(d) a member of CPA Australia, or a member of the Institute of Chartered Accountants in Australia, authorised by the owners corporation to exercise the function, or
(d1) a member of the Institute of Public Accountants authorised by the owners corporation to exercise the function, or
(e) during the initial period only—a person authorised by the original owner to exercise the function.
Maximum penalty: 5 penalty units.
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@bambam said:
As a committee member (we have no official roles on our committee) I am trying to determine whether those owners that have elected to receive emails rather than letters, are in fact receiving them.By not electing office-bearers, you are in breach of the Act (section 18, see below). You leave yourselves wide open for a disgruntled owner to get orders from NCAT making them the chair (Section 19)
18 Executive committee to appoint chairperson, secretary and treasurer
(1) The members of an executive committee must, at the first meeting of the executive committee after they assume office as members, appoint a chairperson, secretary and treasurer of the executive committee.
(2) The chairperson, secretary and treasurer of the executive committee are also, respectively, the chairperson, secretary and treasurer of the owners corporation.
(3) One person may be appointed to more than one office under this section.
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@confused1 said:
I think not electing office bearers is a tactic some (bad) SMs use as only a Secretary can obtain the strata role, and you need the strata role to hold an EGM in order to sack said SM!Two points: It’s not up to the strata manager to elect the committee and office-bearers – only the owners make that decision.
Also, any owner can ask to see the strata roll and strata records, not just the secretary. The problem with email addresses is that there is no provision under the Act to record and therefore provide email addresses so most strata managers err on the side of caution, re privacy, and don’t provide them.
If you wanted to contact your owners, you could obtain a photocopy of their addresses and then send them letters asking them to provide email addresses for future communications regarding the strata scheme. You could even set up a website for that purpose. It’s much easier than you might think.
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If the DA clearly says one parking sport per unit then any by-law that attempted to subvert that would not be valid. In simple terms, by-laws can’t be created if they are in conflict with superior laws (in this case, your planning laws).
Obviously, the people who have benefitted from this aren’t going to give up their parking spots without a fight but that doesn’t mean you shouldn’t press on with this.
As for people who bought their unit in good faith, believing it had access to more than one parking spot, that may well be a case of “caveat emptor”.
If you feel strongly enough about this, you could call a general meeting, proposing a by-law or even a simple resolution re-allocating the spaces to different units (where necessary). If that failed, then you could seek orders at NCAT for the Owners Corp to abide by the DA.
It will be tough fight and cause a lot of bitterness, so make sure you have the majority of owners on your side.
And before doing anything else, talk to an experienced strata lawyer.
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Does the DA specify that there is a parking space for each unit? Or does the number of parking spaces just happen to coincide with the number of units?
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If your DA specifically and clearly says that there is one car space for each unit, the the by-law is invalid. It would require approval from the council to change the allocation.
If the exclusive use by-law is valid (and after two years the Act ‘assumes’ all required preconditions were met) then you are stuck with it.
You might, however, be able to challenge it on the grounds that the EC at the time unduly influenced the Owners Corp and effectively conducted a land grab.
At the very least, the occupants of the additional common property parking should have been paying rent to the Owners Corp.
That said, I can’t see this getting anywhere unless you talk to a strata lawyer.
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Two things, this isn’t really our area – but someone may have a thought.
Secondly, who is Bob?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.
My first thought is that if the building is less that two years old, you need to get the Owners Corp (your committee) to claim and pursue this as a building defect as soon as possible.
If it’s more than two years old, you need to pursue this with the committee as the owners corp will now be responsible. Clearly, lift noise that keeps people awake is unacceptable. There are ways of reducing the noise and they needt be all that expensive. The problem will be if the lift’s supports are driilled in to the other side of your bedroom wall but even then a false wall could make a huge difference.
Apart from that, my best advice is to act now and, if necessary talk to an experienced strata lawyer ASAP.
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Before I respond, can I just take the opportunity to point out the nifty little search window at the top of these pages. It quickly and efficiently searches all the Forum posts going back to the Hanging Gardens of Babylon. After 12 years of this stuff, it’s reasonable to assume you aren’t the first person ever to ask a question.
And getting back to that question, you’ll find a reasonably comprehensive answer (which I found with a search) HERE.
And you can test drive one system HERE.
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