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You are entitled by law to examine the records of the Owners Corporation. I think there is a fee of $30 for this and it has to be organised in advance. You should be able to see the bank account and who has paid what and when.
Once you examine the records, it should be clear what is required.
Failure to provide this information is legitimate grounds for taking the strata manager to Fair Trading and NCAT, if need be, to ask for the strata manager to be removed and the statutory appointment of another manager (of your prior choosing).
Or you could just sack them and go it alone. Have a look at the ad on this page for self-managed strata software. For a block of four units, it’s really all you need.
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there probably is a standard lease but unless both parties have signed it, it would have no standing.
Your best avenue (and i have to admit my knowledge of WA strata law is sketchy) is to pursue the owners rather than the occupants. The parents are the proprietors – send them the Notices To Comply with the by-laws rather than the leas, and follow up with orders. By the way, over here in the East we call this Brat Dumping (or, at least, I do)
Schedule 1 standard by-laws for WA say this in Section 1 (my emphasis):
(2) A proprietor, occupier or other resident of a lot shall —
(b) not use the lot or permit it to be used in such manner or for such purpose as causes a nuisance to any occupier of another lot (whether a proprietor or not) or the family of such an occupier;
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As a very cynical exercise, you can set the size of the EC at your AGM and then decide who is and isn’t on it.
You can also demand that every contentious decision at a general meeting be decided by a poll vote (based on unit entitlements).
But be prepared to be the most hated person in the building if you throw your weight around in this way.
But you can’t alter common property without the support of another 10 percent of owners (giving you 75 percent) and you must have a properly constituted AGM every year at which certain items must be on the agenda.
But as far as running the EC is concerned, it depends how unpopular you are prepared to make yourself. It’s one person, one vote on the EC – unit entitlements don’t count – and you would have to hold a general meeting to overturn any decisions that you didn’t like.
As Whale says, use your power responsibly because there are ways too many poor decisions could come back to bite you on the bum. Not least among them is that another owner could successfully apply for the statutory appointment of a strata manager at which point you would find you had exactly the same power as other owners – ZERO.
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this is a shot across your Strata Manager’s bows. You are telling them that you know the law.
If they go ahead with the meeting and the motions aren’t presented as special resolutions, and noted as such in the agenda, you could:
a) apply to the chairman at the meeting to have them struck off the agenda as being incompetent
b) before the meeting apply to NCAT for an interim order that they not be considered
c) if the meeting has gone ahead and the motions passed on a simple majority vote, apply to NCAT for an interim order to prevent the work going ahead.
I strongly feel that you are getting very close to the point (if you haven’t already passed it) where you need proper professional advice from a specialist strata lawyer. On that basis, I am closing this correspondence unless someone has something new to bring to the table.
Division 3:
35 Forms of motions
(2) The notice [of a General meeting] must clearly indicate which motions require a special resolution for their passage and which motions require a unanimous resolution for their passage.
(3) A motion must not be submitted at a general meeting unless notice of the motion has been given in accordance with this clause …
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@alinka said:
I am very happy to be a member of the forum. Finally a place, where I can get clear and straight forward answers. Thank you
You’re very welcome. And, having said that, I think I have belatedly found a definitive answer with which you can counter your strata manager’s very tenuous arguments.
Earlier this year there was an Appeals Court decision which effectively said that Owners Corporations do not have to “maintain and repair” common property to the current whizzbang bells and whistles standards, just to the level that they are functioning effectively.
His Honour J.A. Barrett said in his ruling that “anything amounting to alteration or addition for the purpose of improving or enhancing the common property is beyond the concept of renewal or replacement…” and requires a special resolution.
This is now an established legal precedent and pretty much blows your strata manager and his cronies out of the water.
You’ll find the OCN Newsletter on the case (popularly known as the ‘Thoo Case’) HERE and a transcript of the ruling (which is actually about exhaust fans in a food court) HERE.
So I would send an email to the strata manager and the executive committee along these lines:
With reference to your apparently anecdotal opinion that the proposed upgrades of balconies do not require a special resolution, I draw your attention to The Owners Strata Plan 50276 v Thoo in the New South Wales Court of Appeal, 22 August, 2013.
In his ruling that Section 62 obligations to maintain and repair common property do not imply a requirement to upgrade the CP, His Honour J.A. Barrett said “anything amounting to alteration or addition for the purpose of improving or enhancing the common property is beyond the concept of renewal or replacement…” and requires a special resolution.
As required by the Division 3, Section 35 of the Strata Act, please indicate on the agenda for the upcoming General Meeting that that the motions to upgrade the balconies will require a special resolution.
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There is a very simple process that you can employ here. You send a letter which you read out at the meeting and ask to be minuted that:
a) You believe the changes to the balustrades are an upgrade not a repair.
b) If the proposed changes are made without proper authority – i.e. a special resolution – you will challenge this at the NSW Civil Administration Tribunal.
c) Because the Strata Manager and those wanting to make the changes have been told that they require a special resolution, you will seek orders at NCAT that they and those who agree to go ahead with the work in the knowledge that it may be a non-compliant decision be held responsible for all costs.
d) Asking other strata managers for their opinion is not a valid way to resolve this. The strata manager should have consulted a strata lawyer. Considering the expense of the work and the opposition to it, as well as the level of opposition to this, you have to ask why they have not done so.
Now, having said all that and having argued all the ins and outs of who should be doing what, there is a safety issue here. The balustrades would not be compliant if they were being installed today. The regulations are about safety – not rules for their own sake.
So while we are saying you are right to argue this is an upgrade not a repair, and while it may not be legally necessary to change the balustrades, that doesn’t necessarily mean it’s a bad idea.
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First of all, it’s not the strata management firm’s responsibility, it’s the Owners Corporation (the strata manager is merely acting erroneously and over-zealously on their behalf).
Any excess payable on the insurance, and any other related loss, should come from the Owners Corp and they should get that back from the builder.
If the sale does fall through because of this incident, you need to get a notarised signed statement from the potential purchaser or their solicitor/conveyancer, stating this.
They don’t have to do this but they might do it as a favour (probably better if your solicitor talks to their solicitor). You then have something definite to use as ammunition in any action to recoup some of your loss.
That apart, any action you take would be a civil action through a local court. This is not a strata issue beyond establishing who should have done what and who is responsible. The answer to that question is that the builder should not have stuck a brick in the sewer pipe (which sounds suspiciously like a deliberate act of sabotage) and the Owners Corp are responsible for the consequences.
This problem is not likely to resolve itself. Talk to a lawyer, preferably one with strata experience, sooner rather than later.
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@mailbox said:
One wonders whether the person concerned has legal capacity to, in the first instance nominate herself to stand, and in the second instance if she were to be nominated by someone else whether she would have capacity to accept the nomination. If she attends and votes at meetings and she is the person that makes quorum but due to the dementia is subsequently found not to have legal capacity at the time of the meeting it raises a point as to whether any of the motions or resolutions of the committee are valid.Good point. But does anyone have the capacity to say so and prevent her from standing. And let’s not forget that decisions made while an EC is not strictly “legal” are accepted as being in good faith. A lot of harm could be done while this person was serving on the EC and before anyone could prise her off it.
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You are paying the correct amount according to strata law because you are paying your share according to your unit entitlements.
If unit entitlements were based solely on the area of the lot you could have an argument that the UEs are wrong and you should be paying 194/350ths (which is your share of the combined area). Apart from the fact that you would end up paying more, so there is no benefit in raising the issue, UEs are not based on lot area but on a complex calculation allied more closely to unimproved value.
For instance a larger property on the ground floor might have lower UEs than a smaller property upstairs because the higher one could have views. However, even if you got an estimate of real estate potential sale values done now, it would not be accurate because it would include additions, improvements and upgrades.
This is one sleeping dog that I would let lie.
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There seems to be a little confusion in all this (or maybe just I am easily confused) but it is absolutely valid to put General Business as a heading at an EC meeting since that is the forum for general discussions as well as specific agenda items. Bear in mind that there are limits to decisions that the EC can make without referring matters to a General meeting.
And there would be nothing wrong with having “General Business” as a section heading in an AGM agenda – along with, say, “Finances” and Maintenance” – provided that heading relates to specific motions that are listed in the agenda.
And you could even have a section as part of the AGM where general business was discussed but no decisions were made or votes taken.
Others disagree with this – preferring to keep the AGM “clean” so there is no doubt about what has been discussed and agreed – but I think there are few enough occasions when you can get a lot of owners together to get a sense of how they feel about various issues in the building BEFORE you put items on an agenda.
Where there is a problem is where new items are added and voted on at a General Meeting without owners having prior knowledge through a correctly issued agenda.
In those cases, where an item isn’t on an agenda but later appears in minutes as a resolution, the case for invalidating the decision would be pretty strong.
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kiwipaul said
I’m not for one moment suggesting that anything unauthorized be ripped out, I just saying it’s not the strata responsibility to fix an unapproved addition.
If an unapproved addition to common property is left when an owner sells, and the Owners Corp has not objected to the addition, then the Owners Corp absolutely and definitely takes responsibility for it, regardless of whether or not they knew about it.
Others think that means they have to leave it in place and repair it when it breaks down. I disagree. If the addition now belongs the Owners Corp, then surely they can choose to fix it or remove it. What they can’t do is choose to do nothing.
Does anyone know of any case law that suggest otherwise?
I have found this, where the new owner of a unit was ordered to remove an unapproved staircase installed by a previous owner.
And in this case, the CTTT Member said: “The Owners Corporation has the right and the duty to maintain and repair common property. In my view maintenance and repairs extends to removing any trespass on or interference with common property.”
Neither of these are precisely what is being discussed here. However, in cases of new owners assuming that additions to common property were approved, I would suggest ‘caveat emptor’ applies.
It makes no sense to me that a subsequent owner of a property can say “this is common property so you must repair it” then says “this is my property so you can’t remove it.”
That said, sense is not a major component of strata law
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I’ve just realised I had the word “should” instead of “shouldn’t” in my post (#16) on this (now edited).
I think putting details of proposed by-laws and other communications on a website that is open to the public (rather than password protected for owners or residents only) is nuts.
Potential purchasers and renters don’t need to see every twist and turn odf a discussion – just the result.
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Here’s a stern warning (and a very naughty suggestion) from a reader.
Jimmy, clamping wheels is a breach of the Impounding Act, and also the Local Government Act. The fine is 20 penalty units (that’s $2,200 + costs in layman’s language) – private or public property. Not even a copper can do it without a court order unless the car presents imminent danger. Time to warn the strata vigilantes!He goes on …FYI here’s section 651 B of the Local Government Act:And this one’s the Impounding Act – but you have to be an “impounding officer” – a grand title bestowed upon you by the RMS.And finally …You want a solution that works?Sugar in the fuel tank.Silent, untraceable and they never come back!Hmmm … yeah. Sugar in the fuel tank is criminal damage and may be subject to even more severe penalties than clamping.However, you might, as a last desperate resort, try a packet of cafe sugar liberally sprinkled around the petrol cap with a post-it note on the driver’s window saying “Dear Parking Thief, I have put sugar in your petrol tank. Don’t drive until you have emptied and flushed your tank or you could ruin your engine.” Result: Much hassle and anguish for the parking thief without breaking the law.Oh, and I’m going along with the opinion that a clamping by-law gives the owners corp de facto permission to clamp owners and tenants cars until such times as I am proved wrong by an owners corp being successfully prosecuted.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 think you are being a wee bit harsh, here, CBF. It reads to me like this community has been patient and tolerant – fixing up damaged property without penalty, for instance.
But I think the progressive nature of dementia and its disruptive nature raise valid concerns about the future impact this poor woman might have on her neighbours.
A simple and compassionate solution, such as suggested by Scottie, could nip this particular aspect of the problem in the bud.
But I applaud your sticking up for the oldies. Ageing population is a concern in strata because of the large numbers of retirees involved.
However, unlike ‘housies’, we can’t pretend that we are respecting people’s privacy when what we are really doing is ignoring any problems that might exist on the other side of the picket fence.
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Here is a set of questions I put to Fair Trading on this issue and their spokesperson’s answers.
- How can NCAT/CTTT replace the same strata manager from some schemes in a development and not the others?
Each case is considered on its individual merits and the evidence produced by the parties. If a party considers the Tribunal made an error in law or made a decision outside its jurisdiction or did not provide procedural fairness, they can explore their appeal rights as a way to seek redress.
- How bad does it have to get before a strata manager loses their licence? Even a conviction for violence and threatening behavior isn’t enough.
Strata managers are licensed under the Property Stock and Business Agents Act 2002, and section 191 of the Act sets out the grounds for a notice to show cause to be issued to a licence holder or former licence holder.
Licensing forms require criminal convictions to be disclosed and some convictions, such as dishonesty convictions might automatically disqualify a licence holder from renewing a licence. Fitness and propriety of an agent must also be considered. A conviction for violence or for threatening behaviour might be sufficient to stop someone renewing their licence or may be grounds for disciplinary action but the circumstances of the matter will need to be taken into account by Fair Trading.
- How many strata managers have been de-licenced in the past two or three years? I have not heard of one.
Strata managers are licensed real estate agents. Data is not kept to distinguish one type of agent from another. Fair Trading reports on its web pages on a quarterly basis about disciplinary action taken against real estate agents. Many agents and agencies have had their licences cancelled in the last two years, but their class of licence is not reported and cannot be ascertained
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