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Michael Teys has indeed gone back into strata management and i have no idea if he is still practising as a lawyer in terms of litigation.
Having ruled out two of my preferred choices already, I would say David Le Page if you want a fighter and Stephen Goddard if you want a negotiator. Also consider Christopher Kerin who is an expert on building defects. He used to work with Michael Teys but has set up a new practice, KERIN BENSON, with experienced strata litigator Allison Benson.
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Write to the strata manager and the secretary of the committee (they are bound by law you have a mailbox on site) along these lines.
Dear Secretary and Strata Manager
As you have failed to address the issues of urgent repairs that I have brought to your attention on numerous occasions (quote dates), I am hereby giving you notice that if these matters are not properly addressed and remedied with in two weeks from this date, I intend to:
a) Pursue an action against the Owners Corporation under Section 62 of the Strata Schemes Management Act, which says “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.”
b) Pursue an action under Section 138 of the Act which says: “An Adjudicator may make an order to settle a dispute or complaint about … 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 … the operation, administration or management of a strata scheme under this Act.
c) Subsequently, use the evidence of negligence in the above matters to seek the statutory appointment of a strata manager, under the provisions of Section 183B, to replace the current strata manager and executive committee.
That should get their attention.
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@Winston said:
I have sought data from the Web and from reading it conclude that the Owners Corporation AND the Strata Manager would NOT be caught by the Privacy Legislation:The problem is that you are not a Supreme Court or High Court judge so your opinion is kind of irrelevant (although you are entitled to hold it). I have read the material you posted at considerable length and my conclusion is exactly the opposite. But I am also not a member of the judiciary, so please take that with a pinch of salt too.
However, look at it this way, your strata manager and EC are probably more mindful of the potential for litigation from someone who feels their privacy has been breached, than they are of your perceived “rights” to harvest your neighbours email addresses.
With fines for privacy breaches ranging from $200,000 to $1.7 million (according to THIS website) they may be right to be over-cautious.
Even without those extremes, the sheer waste of time and money involved in defending themselves against an owner whose email address has, for instance, been posted on the internet, and who has then been subject to extreme abuse as a result, is enough to make any strata manager err on the side of caution.
Sooner or later some strata owner will take their strata manager to the Supreme Court to demand access to email addresses and then we will have a definitive ruling. But until that time, you will have to make do with snail mail.
By the way, my building’s former facilities manager twice sent out emails openly copied to all the other owners (rather than BCC-ed). At that point, privacy no longer existed … and it’s one of the reasons he is now our former manager.
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Yes, Whale, Like a dolphin with one flipper, we are going round in circles. Discussion closed.
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@AJP said:
Frankly, I can’t believe that I am being told how far I can open MY windows in MY home just because some parents in CBD high rise buildings can’t supervise their children.
You are making the assumption that you will be there every minute of every day when there is even the remotest chance that may be a child in your home. The law, quite rightly, does not allow you to make that assumption. Your argument is very similar to the anti-pool safety argument … and yet dozens of children used to die in “safe” swimming pool areas.
Best to err on the side of safety, forget your own preferences and look at the law, and the best place to start is with THIS LINK.
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A strata scheme can set its own rules for the publication of minutes but they still must abide by the Act which says that the minutes of the previous meeting must be attached to the notice of the next meeting unless owners have already received them (see below).
You should probably inform the EC and the strata manager that the general meeting needs to be delayed so that the minutes of the previous meeting can be attached to the agenda, otherwise you will challenge the validity of the planned meeting.
While they are reorganising this, you should put a motion to the proposed reorganised meeting that minutes from a general meeting will, in future, be sent out within, say, 14 days of the general meeting having occurred. This both complies with the Act and means owners don’t have to wait until the next general meeting is called before getting the minutes of the last one.
This may mean “double dipping” since it would be sensible to re-issue the minutes with the agenda of the next general meeting. But that’s surely better than everyone waiting a year before finding out what has and hasn’t been agreed.
33 Notice of general meeting to include copy of previous minutes
Notice of a general meeting must be accompanied by a copy of the minutes of the latest general meeting if the notice is to an owner who has not previously been given a copy of those minutes or who, before the notice is given, makes a request for a copy of those minutes that has not been complied with.
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@larry_vincent said:
Can this Special By Law be repealed without the consent of that former owner or without the consent by the business (husband & wife partnership) that they are continuing to operate on common property?
The Act says rescinding or changing special resolution by-laws can only be done “with the written consent of the owner or owners of the lot or lots concerned.”
So you don’t need the permission of the beneficiary of the by-law, just the new owner of the lot concerned. Problem solved?
By the way, it also requires a special resolution to rescind the by-law, so make sure you have the numbers and that the motion is listed as a special resolution on the agenda.
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You can’t impose fines except through NCAT. Some buildings impose “service charges” but they would have to be enshrined in the by-laws and have very clear indications of what the ‘service charge’ was for.
For example, you might get away with a by-law that says any alleged infringement that is later found to have been a breach of the by-law will attract a service charge of $XX for the cost of investigating and pursuing the resident through NCAT.
I stress the word “might” because the kind of antisocial resident who ignores by-laws is also the same breed that will challenge you every step of the way, just to get you to leave them alone in the future.
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The one thing you haven’t mentioned is how many apartments there are to share the costs.
However, as a very rough rule of thumb, for a building with all those facilities, annual levies should be around 0.7-1.5% of the unit value. However, an older building (more than 10 years) will have absorbed a lot of set-up costs and should have a healthy sinking fund so it may be at the lower end.
That said, anything that is outside of even that very broad range is suspect and you might want to query where all the money is going.
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Generally speaking, you are bound by the by-laws that were adopted at your scheme’s first general meeting and then amended by special resolution at General Meetings and registered with the Registrar.
There is no automatic update, however, even if the scheme adopted the model by-laws as a package.
If your scheme didn’t formally adopt by-laws when it was formed, the “model” by-laws that were in the regulations at the time it was formed are adopted by default. Again, there is no automatic update.
Many schemes periodically update their by-laws to reflect the community’s wishes, changes in attitudes and new by-laws that have come into the model by-laws in the interim. But this has to be done by special resolution at a general meeting.
I believe there was an catch-all, manadatory update of all by-laws back in the 70s but I am a bit foggy on the details of that. I don’t recall anything happening in the 1990s.
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@Merrick N Sniper said:
Hi all in this topic thread. Just found this.Senior Lecturer in Law, University of NSW, Cathy Sherry said in article about the current Strata Titles Act (NSW) entitled ‘How Indefeasible is Your Strata Title? Unresolved Problems in Strata and Community Title’:
Section 52, SSMA provides that an owner’s corporation may make, repeal or amend an exclusive‐use or special privileges by-law with a special resolution and ‘the written consent of the owner or owners of the lot or lots concerned’. Section 54 SSMA stipulates that such a by‐law must provide for the maintenance of the area by specifying if the owner’s corporation will continue to be liable for its maintenance and repair or imposing that obligation on the lot owners concerned. An exclusive‐use by‐law that fails to do so is invalid.
It’s pretty much what I said (in Post 6) so thanks for the confirmation. For those encountering the word “indefeasible” for the first time (like me), the “indefeasibility of title”, according to Sackville and Neave’s Property Law Cases and Materials, means that “the [State Lands] register is the definitive record of all land interests, and thus, the registered proprietor is immune to claims contrary to the register.”
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@Costa said:
The By-Law doesn’t excuse them from looking after it, it doesn’t say who has to look after it, so the Exclusive Users should.The NSW strata Act addresses this by assuming that the owners corp WILL be responsible for common property under an exclusive use by-law UNLESS specified otherwise.
Since the law also won’t allow the by-law to be rescinded without the beneficiary’s approval, this is something that should have been drafted properly to begin with.
The Act’s intention isn’t to give responsibility to the OC, but to make sure someone is responsible if the by-law is badly written or negligent in this regard. I think you might be up the creek without the proverbial on this one.
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@Mojo_1 said:
A question, Jimmy. The SM has been emailing me and calling me telling me I have NO powers to investigate issues or to speak at meetings. She’s emphasised that ALL I can do is vote. I thought that if I had permission of a majority of owners, I’d be able to speak at a meeting if it was relevant?
I would tell your strata manager she needs to go back to strata school. You can investigate as much as you want and talk to owners in a private capacity.
Under strata law you are an “interested party” and can raise complaints on a variety of issues at Fair Trading and NCAT. These include matters covered by sections 138 (resolution of disputes and failure of Owners Corp to fulfil its obligations) and 158 (To make, amend or repeal by-law conferring exclusive rights or privileges over common property) – both of which are relevant in your position.
All owners are entitled to attend executive committee meetings or send proxies, however, they or their proxies can only speak if a majority of the committee agrees. This applies to owners as well as proxies. You can speak at a general meeting as a proxy of an owner.
As to being elected to the EC? Are you sure? I’m just a proxy and a tenant…
Anyone – even a non-owner, non-resident of the building – can be elected to the EC at an annual general meeting, or elected by the EC to fill a mid-term vacancy, provided they are nominated by an owner who is not standing for election his or herself. There are buildings where a long-term tenant has even been elected chairman.
One other specific question: does an owner of a car space own the airspace above it – ie to build a second story structure over it on metal stilts that preserve original car space?
I believe the standard airspace allowance is 2.4 metres above the floor (or thereabouts – but it’s what’s on the strata plan that counts). There is also the issue of the new structures potentially being attached to common property, which includes drilling bolts into the floor and adjoining walls, and who takes responsibility for their maintenance.
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Section 138 allows you to take an issue to NCAT to get an adjudication where an Owners Corp (or EC) has done nothng or refused to do anything about a breach of by-laws. I would think that is precisely how you would force the issue.
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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