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@mindy said:
We own an old unit in Kirribilli. Under the strata plan, our unit owns the roof space. We therefore pay greater strata fees. Does this entitle us to more voting rights?Yes, is the simple answer.
The less simple answer is that your levies are calculated on the basis of your Unit entitlements and so are the votes in a “poll” vote. A poll vote can be called for by any owner on any issue at a general meeting (but not an executive committee meeting) and otherwise MUST be employed for any special resolution such as a by-law or exclusive use by-law.
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It’s worse than that: Under the proposals, parking cops will be able to fine residents who have parked over their parking space lines. Tough times ahead for drivers of 2015 4WD monsters who live in 1960s buildings with Morris Minor car spaces.
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@kiwipaul said:
It’s a crazy situation and the new NSW legislation will do nothing to address it as it stands.That’s a car space half-empty point of view, KP. The proposed legislation will allow, nay, encourage council parking inspectors to patrol strata car parks at the behest of owners. Has to be a step forward, don’t you think?
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My first thought is that it would be a very good idea to consult an experienced strata lawyer about this.
If you do go it alone, however, I would make sure there was a clause that says that anyone who installs air-con without permission or does so with permission but in breach of the conditions set out in the by-law, will have to remove the unit and reinstate common property at their own expense.
I would also create another by-law to cover downlights but, even better, have a look at this document which defines who’s usually responsible for what in a strata scheme. It is not legally binding but you can use it as a template for a catch-all by-law that covers all sorts of things (and the by-law will be binding). Change it to suit your scheme but in general it will stop a lot of arguments about who is responsible for what in your block.
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@paula said:
Hi there, we need to create a by law for the installation of air conditioners. Can anyone help with the specifications needed?? ThanksEvery building is different. What are the issues you feel need to be covered by a by-law?
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DON said:
Is anyone getting away with wheel clamping in Sydney. It is in our By-Laws but debatable whether it is legal if every single resident has not personally expressed consent to that By-Law.
By-laws don’t have to be agreed by everyone to apply to all owners and tenants (see Section 44 below). The law says that when a by-law is properly agreed by the required majority at a properly constituted general meeting, then it has the same effect as if every individual owner signed and sealed the agreement.
That means, in some legal opinions, that the section of the Road Traffic Act that says you can’t clamp vehicles without the owners permission doesn’t apply because if you have a by-law allowing clamping of residents’ cars, then they have effectively given their permission.
NB: this only applies to owners and tenants. Visitors can’t be clamped because they haven’t signed up for the by-laws, even by default.
44 Who is required to comply with the by-laws?
(1) The by-laws for a strata scheme bind the owners corporation and the owners and any mortgagee or covenant chargee in possession (whether in person or not), or lessee or occupier, of a lot to the same extent as if the by-laws:
(a) had been signed and sealed by the owners corporation and each owner and each such mortgagee, covenant chargee, lessee and occupier, and
(b) contained mutual covenants to observe and perform all the provisions of the by-laws.
(2) There is an implied covenant by the lessee in a lease of a lot or common property to comply with the by-laws for the strata scheme.
(3) In this section, lessee means, in relation to a lot in a strata leasehold scheme, a sublessee of the lot.
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Just a final word for anyone who finds the role of the strata manager confusing and/or unclear. Strata Community Australia provide a fantastic on-line education program that leads you through just about everything you need to know if you are going to be on a committee (or just wonder what your EC is up to). You’ll find it HERE and, for my money, it should be compulsory for all EC members.
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DCC said:
Is this by-law unusual or is it something worth trying to change? If so, how would I go about it?
The developer/strata manager/building manager have locked the scheme into a 10 plus five plus five year contract with no reference to exit clauses or performance indicators and it seems to me that you have “lucked in” to one of the most underhand and surprisingly widespread dodgy deals that were once commonplace in NSW.
But that’s not to say it’s illegal.
If the developer did a deal with the service provider and that deal was then agreed at the first AGM of the scheme, then it is legitimate, but that doesn’t mean you are stuck with it.
That’s where you need to start. When was this deal done? Did the developer accept a payment for organising the contract? Did the developer pass the enabling by-law at the initial AGM? Was the developer using proxies that had been acquired as part of a sales agreement (illegal now, but possibly not then)?
If there is any way your scheme can get out of this, then you should. These contracts are often feather-bedded and the strata manager – the person you need to help you manage the facilities management side – isn’t going to lift a finger if it costs their firm money.
Probably the easiest way to do this is to get agreement from the rest of the EC that you want to renegotiate the contracts so, at the very least there are performance indicators and exit clauses.
Chances are this firm will refuse and then you have a choice – do you fight them or do you just wait for the contracts to run out? If you choose to fight them, get a good, experienced strata lawyer and just make sure that it doesn’t cost more even if you win that it would just to suck it up.
The other way is to make sure you get your money’s worth by pushing them to the limit of their contractual duties until THEY want out.
Or, if the service provider has a permanent unit in the scheme – ie, is a caretaker – you can seek an order from NCAT that the agreement and the payments related to it are unfair and should be struck out (and for this you really will need a lawyer). See section 183A below. FYI, under strata law, a building or facilities manager is also referred to as a caretaker.
Have a look at THIS CASE where a a caretaker agreement was struck out for being unfair and unconscionable. The circumstances may be different but it shows that it can be done. As for lawyers, I can recommend our sponsors, Makinson d’Apice or Grac Lawyers who ran the case linked here.
To answer your other question:
How do other people assess the performance of their strata manager? What are some of the key things I should be looking out for?
The strata manager’s roles are quite clearly defined but they also vary, depending on the firm and the indiviuals. A competent strata manager will organise levies collection and the distribution of minutes and agendas for meetings and will pay the strata schemes buiols out of its funds. They often also deal with Notices To Comply and seeking orders at NCAT (but will charge more for doing so).
A good strata manager mentors the EC, advising you on how best to run your building, what your aims should be and how to achieve them. You still have to pay more for a better service but that’s how you get a better community.
Best of luck
183A Orders relating to caretaker agreements
(1) The Tribunal may make an order with respect to a caretaker agreement:
(a) terminating the agreement, or
(b) requiring the payment of compensation by a party to the agreement, or
(c) varying the term or varying or declaring void any of the conditions of the agreement, or
(d) confirming the term or any of the conditions of the agreement, or
(e) dismissing the application.
(2) An order under this section may be made only on an application made by the owners corporation for the strata scheme concerned on one or more of the following grounds:
(a) that the caretaker has refused or failed to perform the agreement or has performed it unsatisfactorily,
(b) that charges payable by the owners corporation under the agreement for the services of the caretaker are unfair,
(c) that the agreement is, in the circumstances of the case, otherwise harsh, oppressive, unconscionable or unreasonable.
(3) Any amount ordered to be paid under this section may be recovered as a debt.
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Are we to assume that you have a problem with the residents of the building. Otherwise you could just ask for the name of the secretary or post a letter to the strata manager c/o the executive committee
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In very simple terms, it is the Owners Corp’s responsibility to establish the source of the leask, fix the leak and fix anything they damage during the course of fixing the leak.
If, in the course of this process they discover that you were responsible for the leak then they can shift the appropriate costs to you by sending you a bill.
They should not be ordering you to identify the source of the leak and should be grateful that you are cooperating to the extent that you have.
They are making assumptions that they are not entitled to make and if I were you I wouldn’t let anyone near my tiles until I had a written statement from them accepting that
- they don’t know the source of the leak
- they will repair it and anything damaged in the course of the repair if they find it is a common property issue (or caused by another lot).
- This would include returning the bathroom to an acceptable condition with matching tiles, if need be.
Co-operation is admirable but being bullied by a misinformed EC secretary or strata manager is a whole other thing.
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@leif said:
STRATA SCHEMES MANAGEMENT ACT 1996 –Source
https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma1996242/
STRATA SCHEMES MANAGEMENT ACT 1996
– As at 1 January 2014
– Act 138 of 1996
DICTIONARY
Part 1 – Definitions
” special resolution” means a resolution which is passed at a duly convened general meeting of an owners corporation and against which not more than one-quarter in value, ascertained in accordance with clause 18 (2) and (3) of Part 2 of Schedule 2, of votes is cast.
What’s your point? You have to do a bit more than quote the Act and make a grumpy face.
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@HERVE said:
Is there a set procedure for poll voting at General Meetings? Is it compulsory to distribute ballot papers returned to the Chair for entitlement counting and declaration? Or is it allowed to use Show of Hands but calculate on entitlements?There is no set procedure – every owners corp has its own way of dealing with this (or not). A sensible strata manager or secretary will register owners as they arrive at the meeting, check that they are entitled to vote (that they are not in arrears with their levies) and make a note of their unit entitlements. Some OCs provide coloured pieces of paper which act like auction paddles and avoid the confusion of, say, two people from one lot voting in a show of hands when they are only entitled to one vote.
In the case of a poll vote, a simple spreadsheet can be set up to establish who is there, who is entitled to vote and what their UEs are. It can be a laborious process in a large scheme but you really only need to count each vote if there is any doubt about the outcome (ie, there is not an overwhelming vote one way or another). However, if an owner demanded that the poll be taken properly, it would be very foolhardy not to do so properly, registering each vote, to avoid the vote being challenged later on.
All special resolution votes have to be conducted by poll vote and all matters requiring a poll vote have to be noted as such in advance on the agenda of the meeting.
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@Colosus01 said:
As you have recommended the issue is now going to an OC vote despite in our EC meeting the secretary having the majority votes via proxy but the chairman deciding this is BS according to her and causing havoc.
How does the secretary have the majority of votes by proxy at an EC meeting? Are you saying that the secretary has proxy votes from other EC members who could not attend, which were allowed by a majority vote at the EC? That is the only way proxies count at an EC meeting. Proxy votes from other owners who are not EC members do not count at EC meetings.
As kiwipaul and whale have advised the resident in question requires 75% of votes in favor by the OC to get what he wants but the strata manager has stated that is incorrect and its 75% of the votes received only. So in light of this which is actually correct?
Whale did not say that at all; he correctly wrote that the percentage required to pass a special resolution at a general meeting is more than 75 percent of those attending a General Meeting in person or by proxy and entitled to vote.
Let’s say you have a scheme of 100 lots. 60 of them either turn up at the meeting or send proxy votes. But 20 of those attending or having sent proxies are behind with their levies. That leaves only 40 entitled to vote and you would need only 31 of them to vote in favour to pass a special resolution.
By the way, all special resolution votes have to be “poll” votes and they are determined by unit entitlements, so the number of owners required to vote in favour could be greater or less than the simple head count, depending on the UEs they hold.
In a complex of 23 had assumed the resident required 18 votes in favour.
See above: It depends how many attend the meeting and are entitled to vote at it.
Lastly as this driveway services two townhouses but the expansion would only benefit one owner the SM has advised the information provided about registering a Special By-Law covering the Owner’s exclusive use of the common property for their driveway, or granting them a “licence” to use the common property is incorrect. Is it safe to say that i am being mislead on her comments?
It’s impossible to judge without knowing the details of how exactly the change to a shared driveway benefits only one owner. Perhaps it makes it easier for one owner to access but at the same time saves common property from being damaged. I would not consider that to be benefitting only one owner. On the other hand, if common property were being given over to provide parking for an owner, that would be a different matter entirely. Your strata manager seems to have got things right so far so I would be tempted to accept their opinion.
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CHSG said
Thanks for this. Just checked the by-laws, and we do not have such a clause or any reference to the 1 access key policy. As such, can we require the owners’ corp to provide an additional key? How?
The Owners Corp doesn’t need to have a one-key by-law to restrict access to the car park – they might want to do so for the simple reason that the building is less secure if there are keys available to outsiders whose names are not registered on any lease or other document that makes them subject to the by-laws of the building. I cleared a carpark of dozens of outsiders’ vehicles in a building in Kings Cross 15 years ago using exactly that argument – and we were challenged by a government department who wanted to use the spaces.
It would be much better for all concerned if you could get somone who already lives in the building and who needs the extra car space – but is prepared to vacate it at weekends – than starting a fight over your “right” earn money in a way that might undermine the security of the block
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