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If your new EC members really are interested in learning more, point them in the direction of the SCA executive committee online training program HERE.
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The real issue here is that it sounds like you have moved into a building that has serious problems with overcrowding. Unlike many others, the Owners Corp is trying to do something about it.
Your beef is with the real estate company who didn’t tell you there was an issue with security. But setting that aside, what do you hope to achieve by challenging the security measures and finding out why security has been eased?
It sounds like you have already won, as far as security being recalibrated goes. What else do you want? All security measures to be removed so that you and your girlfriend can come and go as you please?
You are part of a community and you really should be trying to fit in with its needs rather than trying to make everyone dance to your tune.
The long and the short of it is that you are in the wrong building for what you want from a home. There are others although they may not be as conveniently located or comparatively inexpensive.
Perhaps you should be chasing your real estate agent to let you out of your lease rather than trying to undermine laudable efforts to make the building liveable for everybody.
Trust me, the building would not be paying for additional security unless they needed it. If i were you, I would spend my time looking for a building that was better suited to my needs rather than wasting it pursuing the issue through NCAT which is either going to fail or make life more difficult for other owners in the building.
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It’s interesting that you should mention this as there is a creeping trend in some strata schemes to NOT do anything about disputes, characterise them as personal and leave it to the combatants to sort it out.
In fact, in my own building, complaints by several residents about one owner have resulted in an edict from our chairman that these are personal issues between residents and nothing to do with the EC or owners corp.
I am guessing that this may be part of a “user pays” policy intended to keep levies down, as any involvement of our strata manager quite reasonably comes at a price.
As a result, I contacted a very senior person in Fair Trading and this is what they said:
The by-laws are binding on all owners/occupiers and the responsibility of the owners corp to oversee and enforce via Notice to Comply/Penalties or mediation/NCAT.
So they are an EC and/or general meeting issue. The EC may decide that certain behaviour does not constitute a breach, but they cant say they are not responsible for administering by-laws.
I’d suggest an owner write to the secretary requesting a motion be put to EC meeting (or general meeting) to pursue a by-law breach (including notice to comply/penalty and mediation/NCAT – this is to give them full authority to pursue whatever action may be required if the person in breach does not respond).
Alternatively, an owner affected by the breach, or any other owner or tenant really, can apply for mediation themselves against the person in breach – to mediate, then seek orders if necessary.
So, following the above advice, put a motion to the next EC meeting and if they don’t do anything (or refuse to do anything) you can pursue them through a Section 138 where an NCAT adjudicator can order the EC to take action.
Why would you do this rather than just take action yourself? To make it clear to your EC that their “do nothing” policy is a false economy. They can either accept their responsibilities or double their costs by being taken to the Tribunal and then having to take action anyway.
By the way, anyone who gets on to an EC with the intention of by-passing their responsibilities, just to save money, should be run out of town on a rail at the first opportunity.
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@justsaying said:
it seems to me that unless you are prepared to accept unlawful decisions by an executive, or have pots of money to fight injustice, strata living is not for you.
Not true! There are plenty of avenues through which to challenge “unlawful” decisions (if they truly are illegal). They range from orders at the Tribunal to the statutory appointment of a strata manager to take over the running of a seriously dysfunctional owners corporation.
However, it may be that some legal firms are doing you a favour by not taking on cases they know you can’t win and will only cost you money.
I reckon 95 percent of strata schemes in NSW are non-compliant, if only in some small way, but they get by and nobody is seriously disadvantaged. If they are, a determined and well-planned campaign will bring the EC to book without a lawyer even needing to be consulted.
That said, many owners will put up with autocratic and even self-serving ECs if the value of their property isn’t being harmed, they aren’t being hassled and their levies are kept in check.
And remember the five words that ambulance-chasing lawyers love to hear: “It’s a matter of principle.”
If you can’t persuade the majority of owners in your scheme that there is a problem – which is the easiest way to get it resolved – then you have to ask yourself if the problem is as bad as you think.
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If this was in NSW, and the roof was genuinely fragile, the OC could order its repair or replacement within the restrictions of its by-laws in relation to its appearance.
However, Queensland has this two-tier strata system relating to townhouses, duplexes and the like so I’m afraid I don’t have a clue what the overall Body Corporate’s rights or responsibilities are. All our state strata laws differ but Queensland is another planet.
For some reason this problem reminds me of the Bonzos’ My Pink Half of the Drainpipe. Listen and smile.
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I have a feeling this may fall under Section 138 (see below) regarding the failure of an Owners Corporation to fulfil its duties under the Act.
If you think there is a serious problem with this appointment, you could write to the EC and demand that they hold an EGM to ratify the appointment (or otherwise). You should warn them that failure to do so withing two months will lead to you taking action against the OC under section 138.
Having said that, if you don’t have any issues with the person or company appointed, then be careful of being branded a serial nuisance which will doubtless be used against you when there is serious problem that really does need to be addressed.
138 General power of Adjudicator to make orders to settle disputes or rectify complaints
(1) An Adjudicator may make an order to settle a dispute or complaint about:
(a) an exercise of, or a failure to exercise, a function conferred or imposed by or under this Act or the by-laws in relation to a strata scheme, or
(b) the operation, administration or management of a strata scheme under this Act.
(2) For the purposes of subsection (1), an owners corporation or building management committee is taken to have failed to exercise a function if:
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
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Under NSW strata law, a by-law does not become effective until it is registered with the Registrar General. It may well be that the strata manager sent you the standard by-laws because he hadn’t got round to registering the new one. In that case, I would say you had a pretty strong argument that you moved in under the previous by-laws. However, the critical point is when kitty moved in and if the by-law had been registered at that point.
As a general observation, this is exactky why you want a propers strata search done when you by an apartment. A professional will look at AGM and recent EC minutes to identify any changes that may be in the offing that might affect your decision whether or not to buy.
The Owners Corp has a duty only to issue agendas and minutes of meetings. They have no obligation to tell owners when changes agreed have come into effect but a wise owner would assume it was fairly soon after the meeting (although that is not always the case).
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Sadly, after a major revamp of the Domain section, Flat Chat popped out in the squeeze.
However i am still online and there are moves afoot to get me back into to print. Watch this space, as they say.
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I recall a similar long-running dispute with an owner who had erected a cage around her parking spot, making it difficult for the owners on either side to get in and out of their cars. Despite numerous CTTT orders to remove it, she declined to do anything … until she came home one day to find the cage dismantled and piled neatly in the middle of her car space with a note attached asking her to remove the remains.
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@sean said:
I have already been onto fair trading and they recommended the form for mediation and then go through NCAT. I feel like this option will drag out the situation and will only delay the repairs that are needed further.You need to apply to both fair Trading and NCAT as a matter of urgency by seeking an interim order (have a look at THIS PAGE).
This is what it says: “Applications for an interim order are usually made … where damage to person or property is involved. For example, the applicant may seek interim orders to … carry out urgent repairs.”
The Interim Order application requires you to have at least made an application for mediation but the website state quite clearly that you can (and should) do both at the same time.
Applications for an interim order must be accompanied by either a new substantive application or have a current substantive application already lodged with NCAT. The substantive application will usually concern the same issues.
Although mediation is not a necessary requirement before lodging an application for an interim order, it is necessary for the substantive application. You may lodge a mediation application at the same time as lodging the interim order application.
Far from slowing things down, a decision on an interim order is usually made within 48 hours, so get on it! If need be, hire an experienced strata lawyer to at least advise you on your application.
This is not a waste of time. At the very least, your committee/strata manager needs to know that you are going through the correct channels and it it going to cost them even more if they fight you at NCAT than if they just fix the problem, which they are going to have to do anyway.
You are in a very strong position, legally. The Owners Corp has a duty to maintain and repair WITHOUT LIMIT. It doesn’t matter if they don’t have the time or the money or if they are engaged in negotiation with the builder. They still have to repair the problem and, yes, you could also pursue them for damages because of their failure to maintain and repair common property.
Going to the health department might help in your Interim Order application if they declare the unit unfit for habitation, in which case you could move into a hotel and hope you can force the owners corp to pay for it.
But the main thing is, start pushing this through Fair Trading and NCAT as a priority; just starting an action may get the result you are looking for.
FYI: It is not your job to hire experts to assess the repairs. The strata manager will just hire their own tame “expert” to counter yours and you will still be on the couch.
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I’d just like to point out that the garage doors are internal and, with that in mind, I don’t see why we are assuming they are common property. If the garages are individual lots, then, unless indicated otherwise, I would think the doors may be lots too. I’m not saying one thing or the other – just that it’s not a clear-cut as some respondents seem to think. Little Voice needs to find out whether they are lot property or common property.
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Well, Supersleuth, as they say in all the best crime novels, the answer is to follow the money.
I’m not saying your EC secretary is corrupt (even if you are) but if he isn’t doing the right thing it will almost certainly be costing you money.
The simplest way is to find a local real estate agent who says if you had done A, B and C rather than X, Y and Z, your properties would be worth more. Then you get that message out to the other owners.
The simplest way is to look at your sinking fund and sinking fund plan. If either is inadequate, it will diminish the future sales value of homes (as well as taking you down the slippery slope to special levies).
If you want to play hardball, start issuing a monthly newsletter about problems and, most importantly, solutions. Anybody can ask questions but the people with answers are the ones who get elected.
By the way, be very careful not to make it personal and especially not to make accusations that wouldn’t stand up in a court of law. However, if you present a picture of a dysfunctional EC that is costing owners money, they will soon draw the right conclusion about who specifically is to blame.
Your legal avenue would be to seek the statutory appointment of a strata manager but unless there is open warfare, clear signs of corruption and the building is suffering as a result, NCAT probably won’t have a bar of it.
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The strata manager should supply whatever information the EC and/or Owners Corp requests, in as much detail as they want.
They will also charge you accordingly for the extra work involved.
It really is as simple as that – or should be. Put a motion to the EC or AGM and see what happens.
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A quick clarification on this:
A proxy vote – either given to an EC member or a completely different person speaking on your behalf – has to be approved by the committee. You can’t “appoint” someone, but you can request that the committee agrees to them speaking and voting on your behalf.
And for that reason, you can’t appoint a proxy to make up a quorum. If there is no quorum then the committee can’t vote on whether or not to accept the proxy.
FYI, the quorum is based on 50 percent of the numbers of members of the EC agreed upon at the last AGM. So, if an EC allows its numbers to get too low through resignations and the like, it may have trouble even reaching the quorum required to appoint new members (as it can do to fill vacancies).
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As I have said many times on this forum, there are no StrataKops who are going to come crashing thorough those windows of yours to enforce that laws and by-laws. Even if there were, this is far from clear cut.
So you have three options;
1) persuade enough of your neighbours that this is a bad idea.
2) if you don’t have the numbers, tell the general meeting that you plan to challenge the decision on the grounds that it should be a special resolution and should have been marked on the agenda as such
3) if nthat doesn’t work, be prepared to go for an interim adjudication to halt the work until such times as it can be determined whether ot not this required a special resolution.
To be honest, if I were on your EC and was reading this, I would go for a special resolution and just make sure I had the numbers.
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