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In the interest of keeping the readers of this website properly informed (rather than scoring points to win an argument) I have found the evidence that supports Wirihana’s case and undermines mine:
In this matter, an appeal against an adjudication that a decision to pass an exclusive use by-law did not stand because the EGM at which it was passed was not called by a properly constituted executive committee meeting.
I present this with the following cautions: Decisions of the CTTT (as was) were generally not taken as legal precedents, even in the CTTT. The by-law declared iinvalid, did affect other owners, removing an option for the Member not to make a ruling; a special resolution by-law is a serious matter that has continuing implications for an owners corporation.
Moving on, if anyone can provide definitive examples of where proxies have been disallowed or otherwise at the CTTT or NCAT because they were too late for the first meeting but still considered invalid for the second, let’s hear them. Otherwise this issue is closed.
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@Wirihana said:
… since I last wrote on this topic I have had the opportunity to consult with a Fair Trading legal and technical expert, and I can now clarify a few points mentioned in previous postings:1. An EC can ONLY convene an EGM by holding a properly convened EC meeting with agenda, vote and minutes. A telephone or email vote or an informal meeting is not permitted.
2. This function can NOT be delegated to a strata manager (despite what your beloved Strataman says, sorry Jimmy!)
Setting aside your sarcasm, it depends which function you mean. It’s true that the Strata Manager can’t just decide to call an EGM, but they can, acting as secretary under delegated powers, respond to an appropriate signed request from 25 percent of owners.
And, I firmly believe, despite the opinion of your Fair Trading “expert” – which cites no legislation and quotes no part of the Strata Act or regulations – that decisions made at an EGM that was called by informal agreement of the EC but was otherwise compliant with the regulations in terms of the issuing of agendas and minutes, would stand (for reasons you yourself have stated).
This website and the related newspaper column have dined out for years on the misinformed opinions of Fair Trading employees who turn out to be no better equipped to give definitive and legally binding answers than you or I.
Show me a case where the decisions of an informally agreed but otherwise kosher EGM have been scrubbed because the EC didn’t have a proper meeting and I will dance at your wedding (which is more than I did at my own).
4. The legislation does not have a definition of the “first meeting” when it comes to proxies but Fair Trading takes the view that participation is more important than exclusion, so if proxies are delivered within the required time period before an adjourned meeting, that meeting should be considered the “first meeting” and they should be accepted.
This is an incredible – and by that I mean, I don’t believe it – exercise in semantics. Let’s be absolutely clear on this: If an owner tried to use proxies that were too late for the initial meeting and then didn’t bother to have them updated for the second meeting and they were used to pass a contentious issue, the losing side would quite rightly drive a truck through the loopholes this created at NCAT and, I hasten to add, the expert from Fair Trading who offered this opinion would not be party to the decision. There is a reason there is no definition in the Act of what constitutes a “First Meeting” in this context and that’s because there is only one possible meaning for the phrase. The form asks proxy providers to put a date on the form and says it must be presented 24 hours before the first meeting to which it applies. What other possible interpretation could there be?
All that aside, I fear we are straying into Bush Lawyer Land with all this stuff. The most important thing from your post is that your agitations have led the EC to prompt a review of your pet by-laws. Surely that is the right way to get things done properly and everything else – mistakes and missteps included – is just taffeta.
This is what the Act says:
31 When general meetings of owners corporation are required to be held
(2) A general meeting of an owners corporation (in this clause referred to as an extraordinary general meeting), which is not an annual general meeting, may be convened by the executive committee at any time.
(3) The secretary of an executive committee … must convene an extraordinary general meeting as soon as practicable after receiving a requisition for such a meeting signed by one or more persons entitled to vote in respect of one or more lots, the unit entitlement or the sum of the unit entitlements of which is at least one-quarter of the aggregate unit entitlements.
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As ever, Whale provides a comprehensive response.
I would just like to add that some firms including our good friends at Integrated (see ad above) provide a ‘forensic’ investigation service. Which means that rather than trial and error, the stick probes and cameras where mere mortals can see and detect the source of the problem that way. I would be pointing the EC in their direction before you end up tearing your bathroom apart in search of a problem that might not even be there.
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This seems complicated but it’s actually incredibly simple.
In pre-1974 units, the boundary between lot property and common property ran down the middle of the external wall, meaning the windows and balcony doors were lot property. Unless stated otherwise on the plan, the windows are probably the lot owners responsibility.
Tinting them in a way that is not in keeping with the rest of the building is a whole other issue.
However, if the original strata plan says the windows are, as they claim, common property, then you can offer them two options: either they reinstate them to their previous condition at their own expense (under regulations about altering common property without permission) or they accept an exclusive use by-law (drafted at their expense) giving them the responsibility for maintaining and repairing them.
If they are common property, this is an important issue that should not be allowed to slide because if they sell and their failure to take responsibility for the windows isn’t established in EC minutes etc, then the new windows WILL become the responsibility of the owners corp rather than the new owners.
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Why wouldn’t they pay for a whole new carpet? If they had damaged a wall, you would expect them to pay for the wall to be painted, not just the repaired patch.
But just Google “carpet repairs” and you will be astonished at what comes up.
One other thing, if the owner and/or tenant have to pay for a whole new carpet, it sends a loud and clear message to everyone else to be careful.
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Very quickly get your strata manager to sent the OWNER of the unit a bill as they are responsible for the actions of their tenants. The owner can then take the money out of the tenant’s bond and the tenant can try to get it back from the removalist. It’s a bit of a chain but the responsibility starts where it belongs (the landlord) and ends up where it should – the tenants and their removalists.
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@tripod said:
Perhaps SMH would like to disclose that as the owner of cracker.com.au they are one of the largest advertisers for such brothels. This disclosure seems to have escaped the author of the articles over the last few monthsI have moved this post away from the story to which it refers as it has a whiff of “trolling” about it and just gets in the way of an important discussion.
Just for the record, I didn’t write the original story, I am not an employee of Fairfax and I had never heard of cracker.com.au until I read this post. Even if I were a Fairfax employee, I doubt if I could do much about ads on any of their websites, let alone one in a completely different department.
FYI Tripod, providing sexual services for money is not illegal in NSW, provided they don’t contravene local government planning regulations. Opening a brothel in a residential apartment block clearly does and that and more and that’s what we were writing about.
If the services you believe the services you have discovered on cracker.com.au are operating illegally, you should inform the police.
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@BondiLocal said:
Can the OC repeal the by-law that gives exclusive access to the roof area in either case: for the unit owner who has the illegal works, or the other unit owner who hasn’t (yet) built onto their unit on our roof?The Owners Corp can’t repeal the by-law without the consent of the beneficiary of the by-law however, NCAT can order a by-law be repealed on a number of grounds contained in a Section 158 ruling (see below).
Now, given that your roof-dwellers have already bullied the Owners Corp into approving the changes to common property, I would guess that they aren’t going to put up with this without a fight. So my advice would be to first and foremost consult a specialist strata lawyer (you could do worse than click on the Makinson d’Apice ad on the Home Page). In the meantime gather all the rock solid evidence that you can of this bunch’s behaviour and how it disrupts other people’s lives. You want notarised statutory declarations from residents, neighbours and visitors. Videos are always good, as ar audio recordings (but not of conversations). In other words, if you are going to do this, hit them with everything you’ve got that will stand up in court.
But to answer your original question – the OC can’t do this on its own but there other ways that you can get some relief. You will find more information on that HERE.
Meanwhile, here is section 158 of the Act.
158 Order with respect to by-laws conferring exclusive rights or privileges over common property
(1) An Adjudicator may make an order prescribing the making, amendment or repeal, in terms of the order, of a by-law if the Adjudicator finds:
(a) on application made by an owner, that the owners corporation has unreasonably refused to make a by-law of the kind referred to in section 51, or
(b) on application made by an owner or owners corporation, that an owner of a lot, or the lessor of a leasehold strata scheme, has unreasonably refused to consent to the terms of a proposed by-law of that kind, or to the proposed amendment or repeal of such a by-law, or
(c) on application made by any interested person, that the conditions of such a by-law relating to the maintenance or upkeep of any common property are unjust.
(2) In considering whether to make an order under this section, an Adjudicator must have regard to:
(a) the interests of all owners in the use and enjoyment of their lots and common property, and
(b) the rights and reasonable expectations of any owner deriving or anticipating a benefit under a by-law of the kind referred to in section 51.
(3) An Adjudicator must not determine an application referred to in subsection (1) (a) by an order prescribing the making of a by-law in terms to which the applicant or, in the case of a leasehold strata scheme, the lessor of the scheme is not prepared to consent.
(4) For the purposes of subsection (1), an Adjudicator may determine that an owner has unreasonably refused consent even though the owner already has the exclusive use or privileges that are the subject of the proposed by-law.
(5) An order under this section, when recorded under section 209, has effect as if its terms were a by-law (but subject to any relevant order of a superior court).
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@kiwipaul said:
This is correct only the EC members can vote at an EC meeting but owners can participate as observers and can express their point of view.In NSW, non-EC members are allowed to attend EC meetings but they can only speak if they are allowed to do so by the vote of a majority of the EC. This is partly to avoid EC meetings being hijacked by owners who are prepared to become abusive and intrusive to get their points across.
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@Colosus01 said:
I will take the advice from this thread on board but the EC meeting that was planned the SM has advised that owners are allowed to attend this EC but cannot vote. She has since told me it is against the law not to allow them to attend the EC meeting.The strata manager is right. Owners are entitled to attend EC meetings but they can’t vote and can’t even address the meeting unless they are invited to do so by the EC.
That doesn’t mean, however, that the EC meeting can’t go ahead if everyone who is entitled to attend isn’t able to get there.
I have to admit, I am becoming confused about what it is that you actually want. Do you wish the meeting to not go ahead so that specific item can’t be discussed in the absence of two EC members?
If that is the case, the absent EC members can get another EC member (or anyone, for that matter) to act as their proxy (subject to approval at the meeting by the rest of the EC). If the others on the EC refuse to allow the proxies, the absent members’ supporters could leave the meeting, rendering it inquorate so that no decisions can be taken.
But just to be clear, what is the outcome you require, and how many people in the EC do you have onside and does that represent a majority in the EC?
NB: The original thread was killed due to my pressing the wrong button when I was tidying up mis-formatted posts. It is now back in its entirety.
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@Colosus01 said:
Is there any law covering EC members allowing them to withhold a vote on this particular matter?
The chairman can declare a motion invalid as this one should be, as it requires a Special Resolution Bylaw (see posts below). An SBR can only be passed at a General Meeting and even then it requires a 75 percent vote in favour of those attending.
But even if the vote were valid, you would need the support of at least one other owner to stop it. So why not ask that other owner to refuse to attend then the meeting will be inquorate?
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Kiwpaul is right, there is nothing to mediate.
In the absence of a special resolution by-law, the Owners Cooperation is entitled to ask the garage owner to remove, at their own expense, any structure that’s on common property without a special resolution by-law giving them permission to have it.
However, that’s probably not going to work for anyone. I would keep that up yours sleeve and meanwhile tell the owner that you want to formalise the acceptance of the garage with a special resolution by-law that:
a) makes them responsible for the garage and the common property on which it stands
b) Compensates the owners corp financially (probably a token amount)
c) Guarantees access at any time to the Common Property plant
d) the by-law is drawn up at the owner’s expenseWhen they refuse, as they undoubtedly will, then you tell them that you are legally entitled to ask them to remove their garage from common property and that you have a duty of care to other owners to make sure that they don’t become liable for maintaining private property that is left on common property (as you will be if chummy sells before this is resolved)
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@kiwipaul said:
Take a look at this site and download LPI Circular 2011/08As to your problem my feeling is that the shower tray is lot property and so your responsibility to maintain and any damage resulting from it leaking is yours to repair.
If the shower floor is leaking how do you know it’s leaking is it showing up as a leak downstairs if so it’s a Strata problem, if it is just seeping below the new tiles it’s your problem.
I have to strongly disagree.
In the LPI Circular that KP cites, section 2.11c, says “Original floor tiles and associated waterproofing affixed to common property floors” are common property.
This is a common property issue unless the tiling put on top of the original tiles was subject to a formal agreement that the lot owner then took over responsibility for the tiles.
Otherwise, waterproofing and tiles attached to floors are common property. It’s only tiles attached to internal walls that aren’t common property.
In this particular situation, unless there is documentation to prove otherwise, the tiling is clearly common property and damage caused by its failure is an Owners Corporation responsibility (which is not covered by building insurance, by the way).
An easier to read and understand guide to what is and isn’t common property is THIS ONE from Strata Community Australia.
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