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The office-bearers are elected by the committee so you could try to get a majority on the committee at the next AGM.
Alternatively, you could demand an Extraordinary General Meeting and pass a motion to remove them from the committee entirely but that would require a 75 percent vote of owners voting in person or by proxy.
Or you could canvass the existing then present a motion for the next EC meeting declaring the office open and inviting the election of new office-bearers (this requires, of course, the support of the other EC members who will also have to stand for the vacancies.)
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In the case in question, $21,500 per year to manage 25 units is exactly $15 per unit per week for a year (plus GST).
But Peter is right, break it down and a massive figure can seem reasonable.
The proxy farmers (mostly retirees on fixed incomes) who run my building tried to cut concierge services to the bone, giving us a “massive saving” of $50,000 a year.
I campaigned against it, pointing out this represented a cup of coffee per resident per week while the “saving” would reduce the average value of our homes by about 5 to 10 percent, according to a top local real estate agent.
The move failed, the concierges survived and I have never been forgiven
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The average cost of a professional strata manager is $250 per unit per annum. A professional strata manger will have some sort of training and professional indemnity insurance.
So for about four times what it would cost to get a professional to do the work, your owners are going to get an enthusiastic amateur with no training and no fall-back if they make a bad decision.
Sounds very dubious but then we have forgotten the golden rule in Queensland – nothing must be allowed to prevent anyone from making money out of apartment owners.
By the way – and this may answer the question on how this person came to such a specific figure – $21,450 a year is exactly $15 dollars per unit, per week for a year (plus GST).
More evidence, if it were required, that the figure has been plucked out of the air and bears no relation to any work that may be done.
And if you look at our thoughts HERE, maybe she’s already working on selling the idea on the basis of how little per week each owner has to pay.
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There is an assumption under NSW strata law that if changes are made to common property associated with one lot, then the Owners Corp pays for maintenance. This can (and should) be changed when an owner seeks permission but under the law SOMEONE has to take responsibility and in the absence of anything else, that defaults to the Owners Corp (see extract below).
Obviously, when the pavers went down, the previous owner should have accepted ongoing responsibility for their maintenance. I would guess that your EC’s position is an ambit, basically giving you the opportunity to put things right.
My suggestion would be a compromise: They repair the pavers to your satisfaction and you apply for a by-law in which you accept responsibility for their future maintenance.
That’s a win all round. However, if you are looking to use one of the odd quirks in strata law to get your neighbours to pay and continue paying for something that only benefits you, you may be out of luck. If I were your chair, I’d accept the compromise as it minimises the cost and removes future responsibility from the Owners Corp.
And don’t forget you can always take this to the other owners at a general meeting.
54 By-law must provide for maintenance of property
(1) A by-law to which this Division applies must:
(a) provide that the owners corporation is to continue to be responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, the common property or the relevant part of it, or
(b) impose on the owner or owners concerned the responsibility for that maintenance and upkeep.
(2) Any money payable under a by-law to which this Division applies by more than one owner to the owners corporation or to any person for or towards the maintenance or upkeep of any common property is payable by those owners proportionately according to the relative proportions of their respective unit entitlements unless the by-law otherwise provides.
(3) To the extent to which a by-law to which this Division applies makes a person directly responsible for the proper maintenance, and keeping in a state of good and serviceable repair, of any common property, it discharges the owners corporation from its obligations to maintain and repair property under Chapter 3.
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@kiwipaul said:
If they are within the property no problem (curtains and blinds are) the only issue MIGHT be if it affects the appearance of the lot from the common property. But as you say others have different window covering you should be ok.Not really the case, generally speaking.
If there were a by-law, it could stipulate the outward appearance of the units from anywhere, common property or not.
My building stipulates white blinds or curtains (without specifying a style). One owner who had spent a fortune on very trendy (and very large) black roller blinds was told not to even bother putting them up as he would be ordered to take them down immediately.
But I’m guessing there is no specific by-law about blinds or whatever. However, Elabushka would do well to go through the by-laws that do exist (in minute detail) to discover what can and can’t be done and find and potential traps that this particular strata fascist may be able to set.
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There is simpler solution:
Send a letter or submit a motion to your Chairman, demanding the he resolve the situation immediately or you will take him to Fair Trading and/or NCAT under section 138 which relates to the “General power of (an) Adjudicator to make orders to settle disputes or rectify complaints”.
In this case, you have two complaints. One, that someone is parking illegally on common property and secondly that the Owners Corp (i.e. the chairman) is doing nothing about it. (See previous posts about gathering evidence).
Subsection 1 says this:
(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.
Ans subsection 2 says this:
(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.
The “functions” you are asking them to exercise are the proper implementation of the by-laws relating to parking vehicles on common property, the holding of meetings and the passage of motions at those meetings.
So basically you have to lots of grounds for having a go at your chairman via the tribunal.
I would also threaten an application for the statutory appointment of a strata manager to take over the running of the scheme which will be more expense for everyone – but will mean that at least everything will be done fairly and correctly under the Act.
Now, having said all that, all it may take is a letter to the chairman saying that they are:
a) in breach of the by-laws by parking the car illegally and
b) in breach of strata law by refusing to do anything about it and
c) also in breach claiming permission was granted via a meeting that was not properly conducted under the Act.
If they don’t cease and desist, you will seek redress through Fair Trading and NCAT and you are considering a further application for the statutory appointment of a strata manager – which means all powers of the owners to run their own affairs will be removed – under Section 183B of the Act (see below).
Just a word of caution on the latter – it’s a real case of be careful what you which for as a strata manager has a fiduciary duty to do things by the book and that could turn out not only to remove some of the little allowances you and your neighbours have enjoyed to but would be at an expense you may not be prepared for.
Better to get your other neighbours on board and vote your chairman out at the next AGM.
183B Orders for appointment of strata managing agent
(1) Order appointing strata managing agent to exercise functions of owners corporation
The Tribunal may, on its own motion, make an order appointing a person as a strata managing agent:(a) to exercise all the functions of an owners corporation, or
(b) to exercise specified functions of an owners corporation, or
(c) to exercise all the functions other than specified functions of an owners corporation.
(2) Order may confer other functions on strata managing agent
The Tribunal may also order, when appointing a strata managing agent under this section, that the strata managing agent is to have and may exercise:(a) all the functions of the chairperson, secretary, treasurer or executive committee of the owners corporation, or
(b) specified functions of the chairperson, secretary, treasurer or executive committee of the owners corporation, or
(c) all the functions of the chairperson, secretary, treasurer or executive committee of the owners corporation other than specified functions.
(3) Circumstances in which order may be made
The Tribunal may make an order under this section only if satisfied that the management structure of a strata scheme the subject of an application under this Chapter or an appeal to the Tribunal is not functioning or is not functioning satisfactorily.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.
In situations like these, there is only a problem if there’s a problem. I would suggest the EC allows he bike to be moved across common property and on to th terrace provided there are no issues with, safety, damage to common property, noise and smell.
If the bike turned out to be a de-muffled Harley-Davidson and you were woken every morning and night by its roar and rumble, tyre tracks appeared on your laws and the stench of petrol fumes invaded your homes, it would be nice to be able to reverse the decision without too much hassle.
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Merry Christmas to everyone, especially our StrataGurus Whale, Scottie and PeterC. Only 370 more sleeps until the strata law reforms come in!
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Excellent work, Austman.
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@kiwipaul said:
You misunderstand the concept of Strata Insurance because in Strata insurance their is no common property and lot property it’s just insured property and it’s irreverent whether it’s lot or common property.I think we need to move on from this as it is becoming a pointless argument.
Insurance companies will do things that are not strictly in the terms of their policies because it is cheaper to pay a small amount than fight the issue in court. And sometimes they will do the opposite – it’s a purely businerss decision.
That’s why you can have a car accident that’s not your fault, the other person refuses to pay and your insurance pays up without it affecting your “no claims” (if you have a decent insurer).
The most important point in this, as Whale has said many times, is that just because the strata insurer refuses to pay, it doesn’t mean the OC isn’t liable – it just means they didn’t have insurance cover for that issue.
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@Paddy said:
1. Is this a simple matter of filling out an application or does it require legal representation?
No. legal representation is not encouraged.
2. Would NCAT require mediation before taking action?
Yes, this is a mandatory step (and most cases are resolved at this stage.
3. Does NCAT issue a notice to the owner and does this include a fine?
NCAT can issue orders and fines which are increased considerably if the rogue parker fails to compy with the orders
4. What is the likelihood of success?
High, if the by- laws are clear, the breach is clear and the Notice To Comply has been agreed at a properly constituted executive committee meeting and you have minutes to prove that. Otherwise, it’s a toss of the coin.
5. What happens if the owner ignores the NCAT order?
They’ be in trouble for doing so and face much higher fines -0 but you ahve to make an application at NCAT for that.
6. Any other aspects I may have overlooked.
Make sure all your paperwork is in order and available at every stage. One missing set of minutes or letter or by-law could mean everything is thrown out.
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I agree with KP but there is an anomaly in the “Who’s responsible for what …?” guide which clearly suggests that while damage done in effecting a repair to common property has to be made good by the owners corp, the damage done in the first place by the failure of the common property is not the OC’s responsibility.
It is my firm belief that this would not stand up in any court or tribunal in Australia and what KP says is correct. The problem is convincing your strata manager of this when there is an otherwise authoritative document that contradicts this view.
This is what the relevant note in the above document says:
If damage is caused to a lot owner’s property while the owners corporation are effecting a repair, the owners corporation are responsible to fix the damaged property. However, if the cause of the damage to the owner’s property was not made when the owners corporation were fixing the problem; instead it was caused by the problem itself, then the owners corporation are not responsible to make good the owner’s property unless the owners corporation can be deemed negligent. E.g.:
1. A burst pipe occurs in a wall and the owners corporation have to knock a hole in the wall to fix it. The owners corporation are responsible to fix the hole and repaint the wall afterwards.
2. A burst pipe occurs in a concrete slab. The owner’s corporation fix the leak, but water stained the ceiling paintwork of the unit below. Here the owners corporation are not responsible to repaint the ceiling because it was not the fixing of the repair that caused the damage.
3. A burst hot water service soaked the magnasite in a unit and the owners corporation had to take up the carpet to dry the magnasite. Once the magnasite had dried, the carpet could not be re-laid because it had shrunk. The owners corporation would be responsible for the carpet because the
carpet was damaged because they had to take it up.
4. With example 3, if the magnasite was not damaged, the owners corporation would not be responsible to dry out the carpet or replace it, if it shrunk because the damage to the carpet was not caused when the owners corporation were fixing common property.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.