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Just to add my 10 cents worth here, all of Whale’s comments are spot on, as usual.
And if your EC can’t produce a by-law that has been registered and which says all owners take responsibility for their own windows, then they should pay.
The cost to you, of course, is that you will be persona non grata in the building for a while.
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Agree with Scottie.
The one proviso would be if, for instance, you were trying to write and have ratified a by-law and the lawyer had previous experience of the scheme and/or the specific issue, it would be easier to do so and achieve what you wanted, and cheaper.
Otherwise, find the best independent advice you can get.
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Your committee does seem to be going about this the wrong way.
Section 63 allows the Owners Corp to take over maintenance and repair of personal property. Otherwise, it could just be a transfer of ownership agreement between the lot owners and the owners corp which might then be subject to NCAT orders under sections 142 or 143 (see below).
However, I am curious to know why the owners corp is prepared to take over maintenance of property that can only be used by individual lot owners or their tenants. If it is a question of the lot owners not maintaining the pergolas, then the OC just needs to pass a by-law requiring all lot owners to maintain and repair structures that can be seen from outside the lot.
If it is a question of lot owners trying to shift their personal maintenance and repair bills to the OC, then you might want to pursue orders under Section 142(b) of the Act.
142 Order relating to personal property acquired or to be acquired by owners corporation
(1) An Adjudicator may make one of the following orders if the Adjudicator considers that an acquisition, or a proposed acquisition, by an owners corporation of personal property is unreasonable:
(a) that the personal property acquired be sold or otherwise disposed of by the owners corporation within a specified time,
(b) that the personal property not be acquired.
(2) An application for an order under this section may be made only by an owner.
143 Order requiring owners corporation to acquire personal property
(1) An Adjudicator may order an owners corporation to acquire personal property if the Adjudicator considers that the owners corporation has unreasonably refused to acquire the personal property.
(2) An application for an order under this section may be made only by an owner.
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@PJ said:
For some time now our executive committee (EC) at its first meeting after the AGM delegates all of its functions to the Chair – with obvious outcomes.If by “delegates all of its functions” you mean that the committee no longer meets and the chair decides everything, then your EC has basically ceased to function and any decision purportedly made by it could easily be challenged.
The Act only specifically allows all the functions of a committee to be delegated to a strata manager and it also says that functions can only be delegated to individuals specified in the Act.
As Scottie explains above, you have to give notice of meetings and other owners have to be given the chance to respond and/or attend.
If one person is making the decisions, there is no meeting because that would require a quorum of half the members before he or she could even accept proxy votes.
This would give you problems with, for instance, Notices To Comply which, if pursed at at Tribunal, have to show the minutes of the meeting at which it was decided to issue the NTC. It could also present problems over disputed contracts and work orders.
In that scenario, you could put a motion to the AGM that the committee operates in accordance with the Strata Schemes Management Act, issues agendas and minutes and observes the quorum rule.
In proposing that, you might also argue that anyone who doesn’t want to attend meetings shouldn’t be standing for the committee.
If the committee declines, then you could propose that the meeting reduces the size of the committee to one, which would at least reflect the facts of your situation.
If by “delegates all of its functions” you mean that the chair also acts as secretary and treasurer, this is not unheard of but it’s far from ideal. You could put a motion to the AGM that at least two of those functions be held by different people.
In my book, this would be a perfectly acceptable rule change that, while it has no legal standing, would allow owners to express a preference and question why their wishes are not being observed.
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@Kenuppa said:
Some members have a location included in their profile. I have tried to find where this can be added to my profile, but without success.
If a location was a mandatory part of each member’s profile, miss-directed rants like the one from Admin above may be avoided.
I always find it amusing that correspondents think that making their opening gambit an insult rather than a question will garner a positive response.
FYI: I have tried in the past to make locations a mandatory field but it just won’t work with this software (and others I have employed). If you have any suggestions, please let us know because i would love to do it.
As far as changing your own location os concerned, click on your name, click on “edit user profile”, click on “edit profile”, fill in the space next to “location”. It’s a simple as that.
I did find, in the “About us” section that this forum “is about strata living in Australia.” Not just NSW but Australia.
Correct. We have regular correspondents based in other states who pick up state-specific issues for us. By the way, Queensland strata law is complex and strange and, while we do try to offer advice where we can, it’s almost another planet as far as strata law is concerned.
Congratulations on having resolved your issue (I think). Did you ever discover why the slab was cracked?
As I said, Queensland strata law is a very different animal,
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As Scottie explained, generally you can only divide payments for repairs to common property according to unit entitlements.
If you think the UEs are unfair – perhaps they were set artificially low in the commercial sections of your building to attract purchasers (a tactic far from unknown) – you can apply to NCAT to have them altered.
If you think contributions for a specific payment are unfair, you can apply for a Section 149 variation (see below). However, they would have to be grossly out of kilter to maske it worth the effort and expense, not to mentio0n the risk of an NCAT adjudicator ruling against you.
149 Order for variation of contributions levied or manner of payment of contributions
(1) An Adjudicator may make either or both of the following orders if the Adjudicator considers that any amount levied or proposed to be levied by way of contributions is inadequate or excessive or that the manner of payment of contributions is unreasonable:
(a) an order for payment of contributions of a different amount,
(b) an order for payment of contributions in a different manner.
(2) If an Adjudicator considers that the consent of an owner referred to in section 77 has been unreasonably refused, the Adjudicator may make an order for payment of a different amount of one or more contributions levied or proposed to be levied by the owners corporation.
(3) If a contribution which is the subject of an order under this section has been wholly or partly paid:
(a) an order to pay more has effect as if the owners corporation had decided to levy a contribution equal to the difference, and
(b) an order to pay less imposes a duty on the owners corporation to refund the difference.
(4) An application for an order under this section may be made only by the lessor of a leasehold strata scheme, an owners corporation, an owner or by a mortgagee in possession (whether in person or not).
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If you mean the strata manager, they don’t know what they are talking about.
As an owner you are entitled to see all the records of the owners corporation, including the addresses of other owners. Normally, a strata manager would just pass that on but you may have to pay a small fee of around $30 if you have to attend their office.
You might point out to the strata manager that they are failing in their duties, that privacy legislation doesn’t apply to member of owners corporations and that if they continue to frustrate your efforts to send a bill to the owner, you will seek compensation directly from them AND report them to Fair Trading with a view to having their licence revoked.
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I don’t know if defect inspections in a new building are standard practice but they are a very good idea.
Currently the time limit for claiming rectification of non-major defects is two years (and major defects six).
Non-major defects are basically anything that needs repair but doesn’t mean the building or apartments in it can’t be occupied. Cracked tiles or ceilings, leaking roofs, wobbly balcony balustrades etc etc etc all come under “non-major”.
Your EC is to be congratulated on getting on top of this before time runs out.
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The practical criteria seem to be related to whether or not there is additional foot traffic, pressure on parking, security issues and impacts on common property.
A resident who used the common property pool for children’s swimming classes is one recent example that springs to mind. Another was a tenant who purported to offer a massage service when it was in fact a brothel.
Peter is right about home offices (I’m sitting in mine right now). But I have most of my meetings in nearby cafes. If I had people trooping in and out all day, I suspect I’d be getting a tap on the shoulder from the building manager threatening a “change of use” complaint to the local council.
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Unless there is a by-law in place allowing the use of the common property, then the answer is yes.
In fact, there may be an insurance issue. If someone as injured in this area due to unapproved but ignored use of common property, the Owners Corp could be to some extent liable.
Your owners corp needs to reach a formal, by-law supported agreement over the use of common property, with the commercial owners. Whether or not this includes rent for the space is a matter for owners to decide. Mor important at this stage is the question of responsibility for the safety and wear and tear of the space.
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@dracover said:
Is there a trigger point where I can comfortably say to NCAT look here the EC clearly isn’t doing their job?As it says in sub-section 2(b), if they have refused to do anything or have just done nothing within two months of your request, then you can take them to NCAT. Talking about taking action isn’t taking action – it’s just talking, which is what the two months is for.
What i’m planning on doing is sending an official request for the EC to issues a notice to comply. My assumption is they will continue to do nothing at which point i can act. But i’m not sure how long.
I don’t think you need to do that. If you have a record of your first request for them to take action, that’s when the clock would have started ticking. It’s not up to you to tell them what to do, apart from deal with the problem.
Also, is it possible to take action individually regarding the neighbour? E.g. can I go to NCAT about them rather than the EC?
If you decide to go it alone, you should first apply to fair trading or a Community Justice Centre for mediation. Mediation is an obligatory precursor to applications for adjudications at NCAT (although not with Notices to Comply). You have to attend the mediation but your neighbours can’t be forced to attend. The decisions at mediation are not binding but you can’t proceed to NCAT without having at least tried. You would proceed to NCAT if the situation didn’t improve (i.e. there is a repeat of the breach withing two years).
If so in your experience/opinion which option is better i.e. 138 against EC or directly deal with the neighbour?
What is best is to tell the EC that you will take a 138 against them if they don’t pull their fingers out. The main reason ECs don’t take action is to save themselves the trouble and expense. If you point out they will have double the trouble and expense if they don’t do anything, they would be very stupid to refuse.
It’s always better to go into these issues with EC support, but if it is reluctant and half-hearted, and they undermine your case with weak arguments, you would be better going it alone. However, if they have solid evidence, say, in the form of complaints from other owners, you want them on your side.
That’s why you should try to keep them onside but “reluctantly” inform them that you have the option of a 138 if they don’t make a decision before the two months are up.
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