Forum Replies Created
-
Replies
-
@tharra said:
@JimmyT said:I have yet to have even ONE resident owner tell me they are glad they bought into a building with an on-site manager.
You have just found me
Our on site manager does a great job.So, this is someone who lives on the premises and has a long-term contract with the owners corp to be the “caretaker”? I’m sure there must be a couple out there somewhere but I’m checking to see we are talking about the same thing and not just a facilities manager who doesn’t live in the block.
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.
Stevecro said:
… there is no provision for ‘Proxy Forms’ for EC meetings. I really don’t know where people get that idea from. There is no prescribed proxy form for EC meetings, if the Act allowed for proxies for EC meetings there would be a prescribed proxy form to go with it (I guess).
I’m afraid you guess wrong. This is not a matter of interpretation- it’s a matter of fact. The word proxy is not used but this is what the Schedule 3 Regulations say about owners sitting in for absent EC members as well as EC members voting on absent members’ behalf. These are proxies, by any other name – no forms required:
3 Acting members of the executive committee
(1) A member of the executive committee may, with the consent of the executive committee, appoint an owner or company nominee of a corporation which is an owner to act in his or her place as a member at any meeting of the executive committee.
(2) The owner or company nominee so appointed is, while so acting as a member, taken to be a member.
(3) An owner or company nominee of a corporation may be so appointed whether or not he or she is a member of the executive committee already.
(4) If a person so appointed is a member of the executive committee the person may, at any meeting of the executive committee, separately vote in the person’s capacity as such a member and on behalf of the member in whose place the person has been appointed to act.
Also, this is what the Fair Trading fact sheet on executive committees says on the subject:
Non‑attendance at meetings
An executive committee member can appoint another owner or company nominee, whether or not they are a member of the executive committee already, to vote for them at an executive committee meeting. This must be approved by the executive committee.
Regarding whether or not the EC can elect new members, you are not in a position to know what the intention of the Act was. You can have an opinion but yours is not borne out by any experience with which I am familiar and I’ve been writing about this stuff for 12 years now.
The Act clearly states that decisions of the EC are to be taken as decisions of the Owners Corporation. Or, in other words, the EC can make decisions on behalf of the owners corp.
For instance Executive Committees can decide to replace gym equipment, provided they get two quotes and there is no restriction on their spending imposed by the Owners Corp at an AGM.
EC’s can also decide to issue Notices To Comply, and it says so on the form, provided that power has not been removed by the owners at a general meeting.
In both cases, the Act describes these decisions as being made by the Owners Corporation.
In fact, there is a standard motion that must be put on the agenda of every AGM, asking if the owners corp wants to instruct the EC not to consider certain issues during the coming year. This could be used to tell the EC to hold a full election for and empty seat, if that’s what the owners wanted. Usually, however, it’s to prevent one or two EC members continually presenting the same proposals only for them to be rejected when they don’t get the numbers.
Nowhere in the Act does it specify that retired EC members must be replaced by a vote of owners at a general meeting, or that it has to be by a special resolution (which would require a general meeting).
There are specific decision that the EC can’t make – and these are listed in the Act and Schedule 3 Regulations. Replacing an EC member is not one of them.
I would “guess” the intention of the Act was to avoid having general meetings every time an EC member fell sick, moved house, got bored or got too busy at work.
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.
Regarding election of EC mid-term replacements by the EC (rather than a general meeting) I can only go by what I know is standard practice in my building and I believe in many others, and that is that the EC elects replacements.
I think the significant difference between my interpretation of the law from Whale’s is that he thinks the Act means the Owners Corp has to elect a replacement and I think the EC, acting on behalf of the owner’s corp, can do so, and in saying that, I would cite Section 21 (below).
I the building in which I live, the EC announces a vacancy in its minutes and then the chairman quietly anoints someone and the EC duly elects them.
In five years of shuffling the decks this way, our chair has arranged things so that all but one of the EC members is now his personal choice.
A couple of years ago, the chairman wanted to appoint one of his mates who had cause a lot of grief in the building and I stood against him, just to give the EC a choice.
It was a stalemate and neither of us were elected (a win-win for me). At the next AGM, the chair used his 50 percent-plus proxies to change the rules so that nominations were not declared before mid-term elections of replacements “to save the embarrassment of the losing party.”
Cynics might suggest that it was really so that the office-bearers could elect whoever they wanted before anyone even realised what was afoot.
Trust me, if I thought there were any legal grounds for challenging this, I’d have the lot of them down at Fair Trading and NCAT faster than you can say “proxy harvest”.
But even if I am right, a general meeting can overturn an EC decision – wonder if that applies to EC mid-term recruitment too.
This is what Section 21 says:
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.
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.
OK, I’m going to take a punt here and say that there is a way that this could be done by stepping through sections 110 and 111 of the Act, the first of which allows the owners corp to borrow money and the second that allows the owners corp to provide a service to lots.
I hope someone with a better knowledge of Owners Corp finances will have a view on this but here goes.
The OC borrows the money to get the work done and issues “loans” to owners to pay for the work, according to their Unit Entitlements.
The owners then repay the loans according to an agreed schedule and their share is apportioned to their levies bill as loan repayment, not as a part of their levies.
This is the same principle by which some owners have to pay penalty interest for late payment – it’s not a cost that shared across the board but bills come as part of the levies.
Part of the agreement is that anyone who wants to pay off their loans faster gets priority on having the work done.
Does that boat float? Maybe you should call Paul Morton at Lannocks who advertises at the bottom of this page. He must surely have encountered this before.
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.
@Whale said:
… there is no provision for votes by proxy at Executive Committee Meetings, and Members are elected by the Owners Corporation at General Meetings.Actually, provided there is a quorum, the members in attendance can vote to accept (or not) a proxy vote – or even a proxy member – for that meeting. However, the proxy does not count towards the quorum before that vote is taken.
And the committee elects new members to fill vacancies created mid-term by a simple majority.
However, members can only be sacked from the committee by a special resolution at an EGM.
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.
@kiwipaul said:
I believe the Dividing Fences Act should take precedence over what a maybe inexperienced planner drew at the conception stage to give a level playing field.
That is quite an assumption to make and would not stand up in a court or a tribunal.
This is what the “who is responsible?” document says about dividing fences:
If they are shown as a thick line on the strata plan, then they are deemed a common wall and the responsibility of the owners corporation. However, if they are shown as a thin, dotted or no line on the strata plan, then they are treated in accordance with the Dividing Fences Act and treated as follows: (a) Divides two lots = Each owner is responsible 50/50; (b) Divides one lot from common property = the owner and the corporation are responsible 50/50; (c) Divides one lot within the corporation from the adjoining property = owners corporation are responsible for 100% of its share.
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.
Do you not have the standeard by-law that forbids people from parking on common property?
Also, about 10 years ago I suggested to my building’s committee that they find little corners of common property, mark them as motorbike spaces and rent them to owners.
The owners corp now not only gets another revenue stream but there is a precedent for not allowing bikes to be parked willy-nilly on CP.
The strata manager is not only nitpicking but wrong. There would be no need to change the strata plan as the common property is not being sold, just leased. I suspect he is only coming up with excuses so that the EC members can do as they please and he can keep his contract.
If you have the standard by-law, you can take action at Fair Trading against the parking thieves. But a better idea would be to identify the spaces and suggest a plan at your next EC meeting (with a veiled threat of what might happen if they don’t consider it properly).
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.
The standard modern fire safety closure on external apartment doors has a quick-slow mechanism that is usually enough to prevent it slamming – if it’s adjusted properly.
We used to have fire safety guys come round and adjust ours to “maximum slam” and we would adjust them back – this went on until we sacked them.
If the door closing mechanisms are out of date then they are probably unsafe and need to be replaced. If they are modern ones they need to be adjusted.
One general comment – if we could all just move back from the American model of “who can I sue?” to the traditional Australian model of “how can we fix this?” then everybody would be a lot happier.
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.
@sealion said:
It is unfair to consider someone’s past history in a present legal question.First of all, this is not a legal matter – this is a forum in which people give up their valuable free time to help others who genuinely need advice. Forgive me if I get irritated with people who think they are clever by taking advantage of others’ common decency by posting under a series of fake IDs with different IP addresses.
So are you saying we are wrong to question Matt’s authenticity based on his other posts, (not to mention the fact that his email address is a corruption of the phrase “name a price”)?
But you obviously have great empathy, since you and Matt seem to have suffered the same medical condition due to insufficiently chlorinated swimming pool water.
A year or so ago, I banned someone from this forum for posting nonsense then supporting himself with posts from a series of other made-up identities. When I pulled him up, he ran off to another inferior website to complain about me.
I don’t mind a bit of fun here and there, but anyone who thinks this forum is there purely for their enjoyment, to make themselves feel clever at everyone else’s expense can expect to get short shrift.
Maybe Matt’s predicament of slamming door induced back problems and deafness is real and you both suffered in an epidemic of waterborne infections in strata swimming pools and both wanted to know who you could sue.
If that’s the case, then we need to go public on this so everyone in strata can be warned.
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.
Just to be clear, if you are seriously trying to prove that common property doors have caused back problems and hearing issues for you, you will be taking on the strata insurers and their teams of lawyers, not your neighbours.
However, this question has a whiff of p*ss-take, which I suspect would be any insurer’s response too.
Actually, I invite my fellow Stratagurus (and all you other Flatchatters) to click on Matt’s name to get to his profile and then read all the topics he has started.
A dog that kills a cat, dust coming into his flat, a bug picked up in his pool and always the question is, “who can I sue?”
Am I the only one who smells a rat?
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.
I agree. It might take some creative accounting and maybe it would just be better if they paid him back and the result would be the same … ah, but would it? I seems to me as if the law has been written to prevent owners corps depleting their funds with ill-considered actions against individuals. So, yes, a special levy to replace the “loan’ from the admin fund and repay sealion would be the go.
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.
The main reason many strata managers and lawyers were rushing to register their defect claims was that the changes in the act redefined defects hugely and retrospectively. Tha meant any defects that were deemed to be not “major” – and that’s most of them – were restricted to a two-year claims window. For many buildings, that window had already passed and they would have missed out completely had they not slipped in before the law change.
$1000 is a tiny amount compared to the hundreds of thousands of dollars worth of “minor” defects that show up in some buildings.
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.
The Act seems to disagree with DaveB.
Section 230 clearly says that an owners corporation can’t pay costs or expenses, incurred in a losing action against an owner, from admin or sinking funds. It has to raise a special levy. However, that levy can’t be raised against the owner who was successful in the action.
It makes sense – why should someone have to pay a share of the costs of another party that was in the wrong? FYI: Chapter five is the section of the Act dealing with disputes within owners corporations.
230 Restrictions on owners corporation levying contributions for expenses
(1) An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it under Chapter 5, levy a contribution on another party who is successful in the proceedings.
(2) An owners corporation that is unsuccessful in proceedings brought by or against it under Chapter 5 cannot pay any part of its costs and expenses in the proceedings from its administrative fund or sinking fund, but may make a levy for the purpose.
(3) In this section, a reference to proceedings under Chapter 5 includes a reference to proceedings on appeal.
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.
@davidb said:
When challenged in court we’ll win, there’s no doubt about that but no legal action is without costs and we’re not the richest scheme on the block.You will not be challenged in court, or, I suspect, the Tribunal.
But if you are, the participants have to seek leave from NCAT to have legal representation – a rule that’s partly there just for cases like this and is far from given automatically.
Get on with doing what you need to do and let Mr Sensitive back his threats with some actions. But don’t hold your breath (pun intended).
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.
Yes, I have spoken to my legal eagles and they confirm that there can be no decisions made on general business at EC meetings (although you can have discussions withoiut taking a vote). Don’t know where my brain was before.
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.