[Jimmy-T]

As a registered owner you have unlimited access to any correspondence carried out by, to or on behalf of the Owners Corporation.

There is no privacy provision that would exclude you from viewing any records or communications to or from the owners corp.

To take an extreme example, when an Owners Corp has been involved in a legal matter that has been “sealed” or has been decreed a private settlement, any owner can still view the document, as they are, by definition, “party” to the action.  

It is up to the strata manager or secretary to find a means of allowing the owner to see the document without breaching the confidentiality imposed by the court.  Usually this is done by allowing them to see the document in private but not copy it, after undertaking in writing not to divulge its contents to anyone else.

So, getting back to letters etc, you and anyone else who is a registered owner in the strata scheme is entitled to see them. You may have to pay a modest fee to the strata manager for arranging the viewing, but it is still your legal right to do so.

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[Jimmy-T]

Under section 62 of the Act, the Owners Corp has an absolute duty to maintain and repair common property (see below).  There are exclusions but they only apply if the Owners Corp has passed a special resolution to NOT repair the common property AND a decision to do so doesn’t affect the safety or appearance of the property.

So here’s what you do.  Send a letter to your secretary saying you want to have a meeting to decide on a plan to repair the common property.

You may, depending on the politics of the building, forewarn them that if they refuse to have the meeting or refuse at the meeting to do anything about the repairs, you will pursue them at NCAT, seeking orders under section 62.

So basically, this becomes a “hard way or easy way” question.  The hard way is that they fight you at NCAT and lose, then they have to raise the money to fix the common property, or they do the right thing, get repair estimates prepared, raise the money (either by special levies or, preferably to most people, strata loans) and get the work done.

If owners say they can’t afford it, that’s too bad.  They have been saving money by not putting enough in the sinking fund – now their parsimony has come back to bite them on the collective bum.

Here’s what section 62 of the Act says – and clearly, this is not optional:

 

62   What are the duties of an owners corporation to maintain and repair property?

(1)  An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

(2)  An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

(3)  This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:

(a)  it is inappropriate to maintain, renew, replace or repair the property, and

(b)  its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

Note. The decision of an owners corporation under subsection (3) may be reviewed by an Adjudicator (see section 138).

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[Jimmy-T]

The “Savings” provision seems to be in conflict with section 35 which clearly says that if someone ceases to be eligible, then they cease to be a member of the committee. (See below)

The savings provisions seem to be there so that all the by-laws and special resolutions, the make-up of the owners corp and the committee – as a committee – continues regardless of the new legislation.

35 Vacation of office of elected member of strata committee

 (1) An elected member of a strata committee vacates office as a member … if the person was eligible to be a member at the time of election and the person ceases to be so eligible.

I’m tending to agree with Whale that it’s no change, but I’m not 100 percent sure and either way I can foresee a procession of disgruntled owners and recalcitrant rental agents heading for NCAT. 

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[Jimmy-T]

What you describe would be part of a more comprehensive strata self-management software, since many of these issues are related to decisions of the committee and owners corporations, not to mention budgets and actual finances.

First of all, our sponsor Stratares has a graded self-management service through which you can have as much or as little strata manager involvement as you want (and are prepared to pay for).

Another that springs to mind is Strata Management Systems, software built for self-managed schemes by building industry professionals. I was a consultant on the project in its early stages and, as I recall, it provides every aspect of the nuts and bolts of strata self-management in incredible detail, right down to how much one owner’s unpaid levies is costing everyone else.

I haven’t heard from them for a while but they were definitely on the right track.

Another offering is OurBodyCorp, another online service for self-management but with access to professional strata managers if you need one. 

One of the industry leaders in self-managed software is Mystrata which offers an online portal for both strata professionals and self-managed schemes.

Housenet is a free (initially) web-based community hub that has been adapted for strata  but probably doesn’t have the off-the-peg functionality of the above software. As you can tell from its name, it was not initially designed for strata schemes.

Finally, it’s well worth taking a look at this page from our old friends at Strataman (O’Connors Real Estate) which explains the challenges of self-management but then, if you haven’t been sufficiently discouraged, provides a software kit to allow you to do it.

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[Jimmy-T]

@Decipher said:
CBD3000

The reason behind VCAT taking this action, like it has before in these situations, is driven by section 140 of the VIC OC Act 2006 which states that rules are to be of no effect if the rule discriminates (in the broadest sense of the word) against any owner.

Essentially if the Owner wants to short term lease their unit you cannot ban them from doing so just because you or the rest of the OC don’t want them to.

You are right to say that it is Section 140 (see below) that has invalidated rules banning short term lets, but not for the reasons you said.

It is actually 140 (b)(v) – that the rule is “inconsistent with … any other Act.”

In the case of the Watergate ruling last year, the VCAT adjudication said that the building was in a mixed-use commercial/residential zone and that by introducing the rule preventing short-term lets, the owners corp was over-reaching and attempting to act as a planning authority.  

If the building had been zoned residential only, a rule would have been able to limit the rental periods to no less than what is accepted as permanent residential in Victoria (which I believe is 30 days).

As CBD3000 says above, “unfairly discriminates” does not mean anyone can do whatever they want in their apartment.  It means the Owners Corp can’t create rules that only apply to individuals because of things like their race, religion, gender, sexual orientation, social status, profession or, for instance, whether or not they are renters.

Section 138 clearly allows the owners Corporation to create rules “for the purpose of the control, management, administration, use or enjoyment of the common property or of a lot.” 

On another point, it’s a matter of opinion but I take issue with your observation that people who live in desirable properties in city centres do so for the same reasons that people who rent them for holidays, weekend events and parties do.

I live in an apartment block in Kings Cross in Sydney and, while I expect occasional noise from both inside and out of the block, I would have something to say if the flat next door became a weekend “party flat”. Thankfully, our Owners Corp can see the potential problems from short-term lets and has valid by-laws in place, backed by close scrutiny of visitors to enforce them.

140. Rules to be of no effect if inconsistent with law

A rule of an owners corporation is of no effect if it—
(a) unfairly discriminates against a lot owner or an occupier of a lot; or 
(b) is inconsistent with or limits a right or avoids an obligation under—

• (i) this Act; or
• (ii) the Subdivision Act 1988; or
• (iii) the regulations under this Act; or
• (iv) the regulations under the Subdivision Act 1988; or
• (v) any other Act or regulation.

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[Jimmy-T]

I think your suggestion is fair and sensible.  Take it to mediation and thereafter to NCAT for orders.

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[Jimmy-T]

I have just been pointed in the direction of this Fair Trading web page which recommends a defects inspection within 12-18 months of completion.

Based on that, tell your recalcitrant developer an approach to NCAT to order an inspection is likely to work so they may as well drop their objection now.

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[Jimmy-T]

Read this: http://www.flatchat.com.au/forum/how-to-post-to-the-forum/how-to-make-the-most-of-the-forum/

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[Jimmy-T]

So does that mean a rental agent who gets a small company to nominate him or her as their representative can by-pass the new laws? Many apartment owning companies are basically Mum and Dad operations that create companies to own apartments for tax purposes.

Not much of an improvement if that’s the case.

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[Jimmy-T]

There is no special resolution required so the developer would need to gather more than 50 percent of the Unit Entitlements (as I am sure they or someone else will call for a poll vote) rather than the 25 percent needed to block as special resolution.  That means the pro-survey owners need to get their act together but you probably just need six of the other units to vote in person or by proxy.

I’m not sure where you stand on this, but I repeat, if you don’t identify defects and make a claim within two years of the block being completed, you will lose any right to claim for any but the very, very worst defects – i.e. those that render the building or part of it uninhabitable. 

Small scale developers are notoriously ignorant of strata law, and if I was in your building I would explain to him that even if he succeeded at the EGM, I would be pursuing a Section 138 ruling from NCAT to force the Owners Corp to appoint a surveyor.

He then has the pleasure of paying for one-fifth of the additional cost of overturning his attempts to avoid defect rectification.

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[Jimmy-T]

I have just read the Age article in which the Tenants Union supported the tenants’ “rights” to sublet their apartment.

“Tenants should have the right to utilise the property as they wish, so long as they are upholding their responsibilities as a tenant,” policy officer Yaelle Caspi said.

“We don’t see why this is any different to a tenant having a friend or family member stay as a guest.”

Well, my friends, you have just blown any argument you have ever had about housing shortages right out of the water.  

Short-term lets make more money for the proprietors of the unit that residential rents – just ask Airbnb … it’s there on their website.  So the next time you are whining about the lack of low-cost housing, think about how you have just endorsed landlords who are exploiting residential properties as holiday rentals.

And think about how you have encouraged tenants to ignore the wishes of their community in a apartment block just so they can make a few extra dollars. Shame on you!

We salute and support Tenants’ Unions’ efforts to protect renters across Australia -but that doesn’t mean renters are always right and landlords are always wrong.

Clearly the Victorian Tenants Union is more concerned about the freedom of renters to do what they want with their properties than the effects of short-term letting on the residential property market.

Please join VCAT in the clown section until you can come up with a more measured response to this assault on housing affordability.

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[Jimmy-T]

All the Victorian government needs to do is to define “residential” tenancy as three months or more (as it is in NSW) and to allow Owners Corps in strata buildings to decide whether or not they want short-term lets, regardless of what kind of zoning they have.

But. like our politicians here, they are paralysed by the onrush of the misnamed “sharing economy” – which should be called the “every man for himself society” – and don’t want to do anything that might upset the young “cool” voters.

Imagine if they fined people for texting or wearing headphones while they are walking down the street. It would cut the pedestrian accident rate by about half (according to recent statistics) but there isn’t a politician who has the guts to be seen as the anti-iPhone flag-waver.

Most things in politics are complicated.  Some things are simple. Keeping short-term lets out of residential buildings would belong to the latter group … if our politicians weren’t spine-deficient.

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[Jimmy-T]

I don’t think the agent becoming a company nominee makes any difference to them being excluded from election to the strata committee.  It would be different if the agent was a part-owner of the company that owned the property, but they would still have to have their name on the strata roll to be counted as an owner in order to side-step the restrictions: 

The Strata Schemes Management Act 2015 defines an owner thus:

Owner of a lot in a strata scheme means:

(a) except as provided by paragraph (b) or (c), each person for the time being recorded in the Register as entitled to an estate in fee simple in the lot (in the case of a freehold strata scheme) or as entitled to a leasehold estate in the lot (in the case of a leasehold strata scheme), or

(b) except as provided by paragraph (c), each person whose name is entered on the strata roll in accordance with section 178 as being entitled to an estate in fee simple in the lot (in the case of a freehold strata scheme) or as entitled to a leasehold estate in the lot (in the case of a leasehold strata scheme), or

(c) each person who is taken by section 43 (1) of the Strata Schemes Development Act 2015 to be the owner of the lot.

For the sake of clarity, Section 43 of the Strata Schemes Development Act says this:

43 Powers of lessor if no current lease

(1) For the purposes of this Act, a lessor of a leasehold strata scheme who is entitled to immediate possession of a lot in the scheme because of the determination of a lease is taken to be the owner of the lot. (2) Subsection (1) does not confer or impose on the lessor a right or obligation created by a lease, sublease, mortgage, charge or covenant charge to which a former owner was subject. 

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[Jimmy-T]

I believe the VCAT ruling was based on the fact that the building in question was in an area zoned mixed use – i.e. commercial and residential only.  I think if your building was zoned residential only, you could still ban short-term lets, even in Victoria (although this has not been tested, as far as I know).  The objection to the bans in Docklands, Melbourne,  was that the owners Corp was “over-reaching” by acting as a planning authority. It all depends on the definition of “residential”.

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[Jimmy-T]

@Paul Ritchie said:
My Strata has a simple By Law – “Any lease of a lot within the Strata shall be subject to a minimum term of 3 months.” Is lease the same as rental and does the above cover AirBnB?

Yes and yes.

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