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Not surprised. At least one of our biggest developers has been at this for years, presenting themselves as a “one-stop shop” that will solve all your problems.
However, they will toe the line if you tell them to cut the crap and stop trying to get round the law. Their reputations are still worth something and they know people are waiting to jump on them for the ducking and diving that less savvy owners let them away with.
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@cellblock said:
Do we have a right to access the common property defects recorded by the developer?
As far as I know, you would only have that right if the developer had passed it on to the strata manager or if the strata manager or building manager had passed it on to the developer. In either case, you would be entitled to see them as they have been handled by people who are effectively your representatives.
Bigger picture, this is as dodgy as Hell. I think you are probably being led up the garden path by your developer who is doing minor patch-ups while the clock runs out on defect claims.
Also, the strata manager should not have been appointed by the developer (although you will probably find they were approved at your first AGM).
Your committee needs to agree to spend money on a defects check and put in a comprehensive claim as soon as possible.
The fact that the developer is telling you that common property ends at the unit’s front doors – it doesn’t – suggests they are either fools or liars (or both). Also, individual owners can’t sign off on common property repairs. Well, they can but it counts for nothing.
It sounds very much like you are being ripped off with the knowledge and complicity of your strata manager. They need to be reminded who pays their bills, and told to start acting professionally and think more about their responsibilities and less about the next gig they are going to get from the developer.
Get yourselves a good specialist strata lawyer as a matter of urgency – you only have six months in which to make a claim for defects (apart from those that would make the building or a unit uninhabitable).
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@PeterC said:
There will always be someone ready to assume the worst and tell everyone about it before getting the facts.Hmm, come to think of it, that sounds a bit like me! Ha!
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Thank you very much – you have made my weekend!
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I’m not sure what kind of response you or PMO think we can make. Neither of your posts were questions – just statements of the facts in appalling situations. And that’s fine but please don’t berate us for not coming up with a solution when any other response would be inadequate.
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Just a little confusion here, Peter.
That ruling applies to decisions of the EC, not the OC (although in a scheme of 6 they may well be the same thing).
This is what the Act says:
11 Decisions of executive committee
(2) A decision of an executive committee has no force or effect if, before that decision is made, notice in writing is given to the secretary of the executive committee by one or more owners, the sum of whose unit entitlements exceeds one-third of the aggregate unit entitlement, that the making of the decision is opposed by those owners.
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@Winston said:
As many Lot owners default to nominating the “Chairperson” as their proxy (with / without specific instructions on Motions), is the Chairperson caught under these provisions as an unintended consequence under the legislation?
I think that is rather the point. Living in a block of more than 100 units where the chairman routinely runs a scare campaign about the terrors of the meeting being non-quorate (never happened, never will), characterises any attempt to gather opposition votes as proxy farming and then turns up at the meeting with more than 50 percent of the votes (rendering the meeing pointless), I can’t wait for the “blind proxies” to be eliminated.
Having said that, as it stands, the chairpersons and their loyal committee members who fear informed voting will be organising proxy parties where they ask for blank forms and just fill in their names until their quotas are used up.
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@sofgrain said:
What is the legal definition of an “owner” under strata legislation. I am an owner of one lot, and a director of a company that owns another lot. Do I have one third of the entitlements or am I as individual and the company considered separate entities and therefore not have the required one third majority.
You effectively have one-third of the vote – provided your interest is registered on the Roll.
If you read down through this, to the various sections of the Act, if your name doesn’t appear on the strata roll, you need to send the Owners Corp, in writing, a notice of your entitlement to vote as the nominee of your company.
Many strata schemes will juas accept that you are entitled to vote. However, if the matter is contentious – as I suspect this may be – you would be better to do it properly to avoid challenges.
According to the Act, an owner of a lot in a freehold strata scheme means:
(a) except as provided by paragraph (b), a person for the time being recorded in the Register as entitled to an estate in fee simple in that lot, or
(b) a person whose name has been entered on the strata roll as an owner in accordance with section 98.
And section 98 says:
98 What must be recorded in the strata roll?
(1) There must be recorded in the strata roll in relation to a particular lot:
(a) the owner’s name and an Australian address for service of notices or the name of the owner’s agent appointed in accordance with Part 3 of Chapter 4 and the agent’s Australian address for service of notices, and
(b) information provided under section 118 or obtained from the Register in connection with the lot…
And section 118 says:
118Notice to be given to owners corporation of right to cast vote at meeting
(1) Person with right to vote at meetings must notify owners corporation
A person who has an interest in a lot that, subject to this Act, gives the person a right to cast a vote either personally or by nominee at meetings of the owners corporation must notify the owners corporation in writing of that interest.(2) Contents of notice
The notice must specify the following information and, if the interest is a mortgage, include confirmation by the mortgagor or be verified by statutory declaration of the mortgagee:(a) the person’s full name and an Australian address for service of notices,
(b) the lot concerned and the exact nature of the person’s interest in it,
(c) the date on which the person acquired the interest,
(d) if the voting entitlement conferred by the interest is one that, according to Schedule 2, is to be exercised by a nominee, the nominee’s full name and address for service of notices.
and …
(4) Owners corporation may require notice to be given
The secretary of the owners corporation, if of the opinion that a person obliged to give notice under this section has not done so, may by a requisition in writing served on the person, require the person:
(a) to state, within 14 days, whether or not the person is a person required to give notice under this section, and
(b) if the person is such a person, to give that notice.
(5) Person prevented from casting vote if certain requirements not met
A person is not entitled to cast a vote at a meeting of the owners corporation if the person has not complied with a requisition served on the person under subsection (4) or, in the case of a vote to be tendered through a nominee, if the nominee’s full name and address for service of notices have not been notified under this section.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.
Holding an EGM is a major hassle and expense (and my guess is no one would turn up).
However, it would be much better than our system whereby the chairman approaches people privately and doesn’t announce the candidates for election by the EC only until after the matter “to save the embarrassment of those who aren’t elected”.
Currently all but one member of our seven-strong EC was appointed mid-term in this way. Guess how often the chairman doesn’t get his way.
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This is exactly what by-laws are for – setting limits that are acceptable to the vast majority of owners.
My building limits building work to 7.30 am Monday to Friday (except public holidays) and not at all at weekends.
That pretty much stops hobby renovators in their tracks as it confines working time to basically the same hours operated by professional builders.
Why would you do that?
1. you don’t want amateurs or unlicensed builders messing around with your building’s water pipes, electricity, and other common property.
2. Weekends are when most people are at home relaxing – you don’t want yours to be shattered by noise from building works
3. Professionals get in and get jobs done as quickly as possibly becasue time is money. Hobby renovators will never be finished. Weekend after weekend of hammering, sawing and drilling because some numpty has seen a bathroom on The Block and wants to have a go him or herself? I don’t think so.
Do yourself a favour and get the numbers lined up to get this through your next general meeting.
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@Whale said:
An executive committee (E/C) vacancy that occurs in the circumstances described needs to be filled in accordance with a vote by the owners corporation – not by the remaining committee members.There is some debate over this.
Section 4 (2) says: When a vacancy occurs in the office of a member of an executive committee … the owners corporation must appoint a person eligible for election as a member to fill the vacancy.
However Section 21 says decisions of the Executive Committee are decisions of the Owners Corporation, except where those decisions require a special resolution or a unanimous vote (see below).
A lot of Owners Corps take that to mean the the EC can elect replacement members when one leaves, because Section 4 doesn’t specify that the decision has to be made in a general meeting.
However, section 2(b) says any decisions made in a general meeting can only be decided in a general meeting. The election of the EC occurs at a general meeting so that would suggest that Whale is correct.
All I can say is most ECs that I know take the former point of view and I have never heard of it being challenged at a Tribunal.
21 Executive committee’s decisions to be decisions of owners corporation
(1) A decision of an executive committee is taken to be the decision of the owners corporation, subject to subsection (4).
(2) However, the following decisions may not be made by the executive committee:
(a) a decision that is required by or under any Act to be made by the owners corporation by unanimous resolution or special resolution or in general meeting,
(b) a decision on any matter or type of matter that the owners corporation has determined in general meeting is to be decided only by the owners corporation in general meeting.
(3) An owners corporation may in general meeting continue to exercise all or any of the functions conferred on it by this Act or the by-laws even though an executive committee holds office.
(4) Despite any other provision of this Act, in the event of a disagreement between the owners corporation and the executive committee, the decision of the owners corporation prevails.
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@pmo said:
If the floor belongs to the owner then the owners corporation is responsible for any damage caused to the floor by the spalling repair regardless of whether it is a fixed or a floating floor and regardless of whether it was installed with or without permission, by virtue of s.65(6) of the ActThat section goes on to say the Owners Corp is not liable for damage cause if it is a result of them being hindered. Isn’t laying down a floor that shouldn’t be there “hindering”?
I don’t know the definitive answer to that but this is exactly the kind of thing an NCAT adjudicator could have a brain snap about and go either way.
My opinion? If the flooring is there without permission, the owners corp is not liable if it gets damaged during essential repairs because it shouldn’t be there.
There is no penalty under the Act for failing to obtain permission to install a wooden floor …
There aren’t many penalties for anything under the Act – but it and most by-laws say owners can’t change common property without prior notice and permission.
If the owner had an illegal machine gun stored under the floor and it was damaged during the repairs the owners corporation would be liable for the damage as it is lot property.
They wouldn’t be liable if the machine gun was in the way, preventing them from doing the work, and the owner refused to move it.
The fact that the goods may be illegal or may have been installed without permission is irrelevant for the purposes of s.65(6).
Not true. In my opinion, if the floor was installed without permission and is hindering the work, then that’s tough on the owner. If the floor was installed with permission, then removing and repairing or replacing it would be part of the work.
I may be wrong but I don’t think so. If you can cite one case where your scenario has been definitively proved correct and I will run it here. Otherwise, it’s your opinion versus ours and I refuse to take up any more space debating hypotheticals.
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Firstly, that is a valid majority. An abstention is a non-vote, not a ‘no’ vote, so the vote was three for and two against.
Regarding Roberts Rules, there are no set standing orders for strata committees and you would have to have a vote taken (probably at a general meeting) to establish what rules you were going to operate by, Roberts or Rafferty’s or anyone else’s.
Which reminds me, I keep asking Fair Trading to supply an off-the-peg set of standing orders but they never do it and I never get round to it.
Maybe that will be my project for this year.
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I recall this story being related about 10 years ago by the then Commissioner of Fair Trading (or was it the CTTT).
The Tribunal declined to make a ruling as no one was prepared to monitor its enforcement. I think he was taking the P.
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