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@dyden2099 said:
I live in a building built in 1965. What differences are there for buildings if they strata plan was formed under the 1973 act in terms of the treatment of common property?I believe that the significant difference was the the line between lot property and common property was moved from the middle of external walls to the inside, meaning that windows and balcony doors became common property rather than lot property (as did balconies).
Anyone else know of any other significant changes?
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Dudley
Scroll down the page and you will find an ad for our sponsors Strata Manage IT which is self-managed software that is fully compliant with NSW regulations and allows you to pay extra for help from a strata manager.
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@DaveB said:
Unless the Executive Committee has delegated all its powers to the Managing Agent it may limit the extent of the Managing Agent’s authority to expend money … so refer to your Agreement, and send a written instruction with your requirement to your Strata Manager.DaveB is 100 percent correct – but the other side of the coin is that the Owners Corp may well have delegated all its EC powers to the strata manager. A lot of schemes do this because the people who would otherwise approve invoices are often too busy or too disorganised to get things done themselves.
And just because the SM isn’t telling you the detail of what he or she is doing, doesn’t mean they are up to no good. A simple phone call to the SM about what the process is and what their arrangement with the scheme is (in their contract) could save everyone a lot of unneccessary grief.
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The simple answer to the question of how to correct inaccurate is that the minutes of the last general meeting can’t be approved or otherwise until the next general meeting (executive committee meetings are a different forum with their own processes).
However, at that next AGM Fran and her husband should oppose the standard motion to approve the minutes of the previous meeting and offer a more accurate record of what was discussed and decided.
In fact they could send a letter to the new strata manager right now saying that they intend to do this and why. That letter will be on the record for anyone to see.
They could also present a motion that the minutes of the previous year’s AGM were also defamatory and inaccurate, detailing how as precisely and unemotionally as possible. That way, at least the most recent record is accurate (although you are drawing attention to the nasty stuff).
Regarding other posts about inaccurate minutes, LarryV’s idea of putting it on the agenda of the next AGM that the EC can’t distribute minutes until they have been approved is sound (but bear in mind you have only 14 days in which to do this).
Why not just put a montion to the next EC meeting censuring the strata manager for inaccurate minutes – with details of how they are inaccurate – plus anopther motion asking the EC to examine the terms of the strata manager’s contract with a view to finding a replacement. That should get their attention.
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@andyj said:Last year after a protracted period of successful adjudication, appeal by owner and finally prevailing at the tribunal. I managed to get the owner to remove the floorboards from the living and bedroom areas of the unit above.
What did the adjudication actually say? If the owners were ordered to mitigate the noise then you have a very good chance of them being in serious trouble if it can be shown that they deliberately didn’t do enough.
If the order was to lay carpet, than your case is a lot weaker.
Regards
Jimmy.
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A bit more on the tax front, uniquely in NSW, the Owners Corp is regarded as an “agent” for the owners when it comes to common property whereas in other states and territories, common property is “vested” in the owners.
Have a look below to see what the ATO says about income derived from common property. And here are links to three interesting documents related to the subject:
An article for Strata Community Australia by Wally Paterson of Dynamic Strata Management.
And a Tax Office fact sheet on GST issues related to strata schemes
From IT 2505
INCOME TAX : BODIES CORPORATE CONSTITUTED UNDER STRATA TITLE LEGISLATION
17. The assessability of moneys received in respect of the common property, for example, fees derived from the letting of shops situated on the ground floor of a block of apartments where the ground floor forms part of the common property, varies according to the relevant State strata title legislation.
In those States where the common property is vested in the proprietors, viz. Queensland, Victoria, Tasmania, Western Australia, or vested in the body corporate as agent for the proprietors, viz. New South Wales, the income derived from the use of the property constitutes assessable income of the individual proprietors.
This is considered to be so even in those States where the strata title legislation prevents a proprietor from ever taking physical receipt (other than on winding-up) of the moneys, and where the moneys are paid directly into one of the body corporate’s funds.
In these cases, proprietors receive a benefit in that the amount needed to be levied on the proprietors by the body corporate as contributions to the administrative or other fund would be reduced by the rental income applied directly to the fund.
Accordingly, section 19 of the Act would apply to include these amounts as assessable income of the proprietors. Expenses attributable to the derivation of the income from the common property, including depreciation, would be allowable to the proprietors in proportion to their lot entitlement and to the extent of the revenue producing use of the individual lots (Taxation Ruling No. IT 2398 deals with depreciation of co-owned property).
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@PeterC said:
Note, Whale has it the wrong way around. ‘in trust’ lets income be done simply, once on the OC tax return equitably with benefit to all owners through lower levies in proportion to unit entitlements. Having each owner required to declare their little bit is what you want to avoid.Peter, you’re back! We were about to send out search parties.
Re Whale’s position on taxable income, I believe there is a quirk in the NSW strata laws that means that income to the building has to be notionally distributed to owners as a pro-rata individual benefit (although it requires a unanimous vote of the owners to actually put the money in their accounts).
I hadn’t heard of the “in trust” angle – and I would love to know more if it means the Owners Corp can be taxed as a body for benefits it receives, rather than individuals being taxed for money they never see. Anyone else know anything about this?
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Firdt you need to get the door closers adjusted (which is done using two hxagonal or Allen screw heads). The installers will always set these at the maximum “slam” because that guarantee s the door will close. You can have all the doors adjusted to a soft click. If that still doesn’t work, you can probably add the rubber strips provided the don’t interfere with the door cclosing properly (which is the key to all this).
So really what you need to do is put a motion to your Executive Committee (or strata manager) asking them to have the doors adjusted because they are breaching by-laws about not interfering with the peaceful enjoyment of other lots.
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@newlsie said:
Can anyone help me in regard to the procedure one has to go through to enclose a balcony. I know that I will need permission from the OC but what are the Council regulations? I live in Sydney. Can this be put through as a Complying Development or does it need a DA? Would greatly appreciate any advice on this topic as the internet is drawing a blank.We must be looking in different corners of the Interweb, Newlsie. This is what THIS City of Sydney document says about changes that don’t come under complying developments:
… external changes including alterations to balconies/ terrace areas.
Now, that doesn’t mean you can’t enclose your balcony, it just means you will probably have to apply for Development Approval.
As for the process, take detailed plans to your Owners Corp and ask for their approval. That will make a huge difference when you go to council seeking a DA.
And if the OC are nervous, they can give approval subject to you getting a DA.
It’s a chicken and egg thing but, as any Creationist will tell you, the chicken and the egg arrived on the planet at precisely the same time. By the way, if you are not a City of Sydney resident, your local council may have different rules and the best way to find out what they are is to ring up and ask.
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That’s right, Who.
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I think that, because every complex is different, the provision of hydrants, hose reels, fire doors and exit pathways and all the paraphernalia of fire safety provisions is highly subjective and specific to each scheme.
That said, I know there are calculations for the width of corridors that are contingent on the number of people who might need to get out in a hurry (one of the hidden dangers of overcrowding).
I also know that that the council or fire brigade can come in and demand a Rolls Royce fire safety upgrade but end up being negotiated down to a Toyota Corolla version, provide that its safe and the work is actually done.
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I can understand why the Owners Corp wants to make sure your renovations don’t impact on other properties – placing a bathroom over or adjacent to the bedroom of another unit could have unfortunate consequences if it isn’t insulated for sound correctly (just for example).
But I can also understand your frustration at the apparent dithering of people who want to exercise their right to control elements of the process but seem incapable of making decisions about what it is that they want to control.
This death by indecision can be incredibly frustrating but there are ways to get things moving under strata law.
For example, you could raise this as a dispute at Fair Trading (who will set up the compulsory mediation) then apply for a section 144 ruling to order the Owners Corp to agree to reasonable changes to common property. I have reproduced the relevant section below.
To avoid becoming the EC’s enemy, I would present this to the Strata Manager and EC as an effort to clear the log jam rather than force the issue and reassure them that you are prepared to listen to their concerns – but you can only do that if they let you know in writing what they are.
Now, this may never get past the mediation stage because once the dialogue starts, you might actually be able to resolve the issues. But, in case that doesn’t happen, at least you have moved things forward.
The critical clause is 2(b) which says the Adjudicator must be satisfied that the Owners Corp has refused to allow you to use common property in a way that would otherwise mean you can’t make use of your lot.
In your case, that’s exactly what’s going on here. You might also double up with a Section 62 claim against the Owners Corp, requiring them to maintain and repair common property. Section 62c is also reproduced below.
Now, before everybody starts firing lawyers at each other, a competent and professional strata manager will sit down with you and work out how your demands can be met while still keeping the building happy. But if your SM isn’t up to scratch then you are perfectly entitled to drive the issue to get the result you require.
Now, that’s just my reading of the issue and other Flatchatters may have their own views but I reckon a chat with the Strata Manager that you are thinking of taking this to Fair Trading and then NCAT (formerly the CTTT) might stop the wheelspin.
144Order granting certain licences
(1) An Adjudicator may order that the applicant for the order, and any occupier of the lot of which the applicant is the owner, may use specified common property in the manner, for the purposes, and on the terms and conditions (if any), that are specified in the order.
(2) An Adjudicator must not make an order under this section unless satisfied:
(a) that the lot of which the applicant is owner would otherwise be incapable of reasonable use and enjoyment by the current owner or occupier of the lot or generally by an owner or occupier of the lot, and
(b) that the owners corporation has refused to grant a licence to use common property in a manner, for purposes, and on terms and conditions as would enable the current owner or occupier, or generally any owner or occupier, reasonably to use and enjoy that lot …
(3) 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 made by a superior court).
(4) An application for an order under this section may be made only by an owner.
62What are the duties of an owners corporation to maintain and repair property?
(1) An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
(3) This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:
(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.
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@considerate band fair said:
I am recently reading “lawyer speak’ in a lot of replies and my eyes completely glaze over as I try to understand the words making patterns on this page.Ironically, this very week a received a slap on the wrist on the Victoria-specific website (flatchat-vic.com) for referring to the part of my unit that was common property.
The writer rightly said that if something is part of my unti, it can’t be common property (and vice versa).
I could argue the point but you can see how we drift into legal-ese when we try to be not so much politically correct as strategically specific.
I hate it when we adopt bush lawyerisms, accidentally or otherwise, and there is no greater foe of hithertos and henceforths than yours truly.
I can only leave it to the timeless words of the Marx Brothers:
Groucho: So the party of the first part shall be known in this contract as the party of the first part.
Chico: Well it sounds a little better this time.
Groucho: Well, it grows on you. Would you like to hear it once more?
Chico: Just the first part.
Groucho: What do you mean, the party of the first part?
Chico: No, the first part of the party, of the first part.
Groucho: All right. It says the first part of the party of the first part shall be known in this contract as the first part of the party of the first part, shall be known in this contract – look, why should we quarrel about a thing like this, we’ll take it right out, eh?
Chico: Yes, it’s too long anyhow. Now what have we got left?
Groucho: Well I’ve got about a foot and a half. Now what’s the matter?
Chico: I don’t like the second party either.
Groucho: Well, you should have come to the first party, we didn’t get home till around four in the morning. I was blind for three days.From A Night At The Opera see it HERE on YouTube
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Our building has fire stair door locks that allow access to the stairs from the lobbies and thence to the street – but not the other way round. However, if a fire alarm goes off, the locks all open, allowing access from the stairwell to other lobbies, if required (but I think not from the street to the stairwell).
In any case, I agree that the removal of locks is something that requires approval at a general meeting. The fundamental security – and by that I also mean physical safety – of the building has been altered and all owners were entitled to discuss it and decide what they wanted to do.
Having people sleeping in stairwells reduces the ability of everyone to get out of a building quickly and safely. And, of course, none of this really matters … until it does. And then it’s a matter of life and death.
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@Whale said:
PS – Stratafied’s post arrived as I was typing this, and it should be noted that there can be no “general business” on the Agenda of General Meetings; hence my question about a Motion.I thought General Business could be used to discuss issues but that no vote is permitted (or, at least valid) unless the specific item was on the agenda. Given that the AGM is the time when most owners are all together, it would seem unfortunate to limit discussion, even if you can’t legitimately vote on what you discuss. Having said that, the chairman could introduce an informal discussion at the end of the meeting proper – there would be no harm in that.
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