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@Kangaroo said:
You may (after a suitable period of notice) have the right to move the vehicle (to a legal parking spot), but I would strongly suggest you do not dispose of it.What “right” is that? As a far as I can tell, the law comes down firmly on the side of the vehicle owner which may not be clamped or towed without the owner’s consent.
But Kangaroo is right. The tarpaulin business does make a difference. I would ask the strata manager to send a notice to all owners and residents telling them that a vehicle has been wrongly stored in a private parking space and giving them seven days to move it before “action” is taken to remove the vehicle and charge for the use of the space.
Or you could do this yourself.
I would say there’s a strong likelihood that and absentee owner has mistakenly stored the vehicle in the wrong space and has no idea that there is all this trouble around it.
Failing that, drag the car on to common property and let the Owners Corp know how it feels when someone washes their hands of a problem.
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How ridiculous – what kind of crappy insurance does your building have that it doesn’t cover the old “shutter landing on car load of American lawyers” clause?
Regarding their referral to a DA, your shutters would almost certainly come under a “compliant development” and therefore would require no D.A. I would get your shutter installer to investigate this immediately.
Your EC and Community Association are being ridiculous and I think it’s time to rattle their cage and give this new NCAT bunch a spin round the block.
You’ll need to go to Fair trading for mediation first but you can then pursue an order under section 158 which says:
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.
Sections 51-55 cover special resolution by-laws and how they operate. So put together a by-law saying that you are given permission to install shutters attached to common property (as per your attached designs) and that you take responsibility for their upkeep and maintenance and to the area of common property immediately affected by their installation.
At the same time, jump through whatever hoops are required to make this a complying development at council and you’re sorted.
OR, just install the things, make the EC do all the legal and NCAT work and hope that you get the same result.
I would never recommend that anyone takes the law into their own hands … but it’s probably what i would do.
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@daphne diaphanous said:
I note also that the three of you have “gone to town’ on me & that is certainly not cricket.I thought I had made the “it’s not fraud” comment and the other two had had a swipe at ME.
I think we should let the whole fraud thing die out and I will take this opportunity to quote my new favourite piece of philosophy which I learned from that fount of all wisdom, the TV series “New Tricks”. It’s called Hanlon’s Razor and it goes something like: “Never attribute to malice anything that can just as easily be attributed to stupidity.”
I reckon that should be at the top of every page of the Strata Schemes Management Act and I would think that certainly applies to the Owners Corp trying to gouge damages to the gate from someone who has merely parked illegally.
It’s a scare tactic at the very worst. It ain’t fraud. And it ain’t cricket either.
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@spryn said:
I suggest reporting it to the police as abandoned… I had a similar situation. The police stick a sticker on the car and take the plates. If no-one calls the police within the time frame, they remove it.I am curious – did this happen within a strata block? I ask because often police and councils will say that this is private property and comes under strata law and therefore they have no jurisdiction.
Your living so far from the problem is an issue but the simplest method is to leave the car on the street where it IS a local council/ police issue but bear in mind that you are probably committing several crimes in doing so.
Or just drag it out into the common property driveway and see if the Owners Corp is still as keen to say it’s not their problem.
But seriously, Boronia’s method has a lot to recommend it. If the towies will take it, let them have it.
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@kkw said:
The building manager will have its own 3rd party contractors (and employees) that it uses in the course of performing its duties, and will issue work orders to those 3rd party contractors (with the approval of the EC / OC, of course).However, the NSW strata legislation (section 29A Strata Schemes Management Act 1996 and regulation 13 Strata Schemes Management Regulation 2010) states that the “entering into contracts relating to the maintenance of common property or the provision of services to the common property” may not be delegated to or conferred on any other person unless the person is a member of the EC or a strata managing agent. (For legal eagles, see below for the full extract of the legislation).
Does this mean that a building manager isn’t supposed to be issuing work orders to contractors?
You have already described the circumstances under which this can work – the building manager arranges the work but the EC signs off on it before it is actioned. This is not delegation of powers. Delegation is when, for instance, an Owners Corporation asks its strata manager to take over the roles of secretary, chair and treasurer (usually because nobody else is able or willing to do so).
There’s a difference between delegation and permission. For instance, you could give your strata manager delegated powers to approve work organised by the building manager. But the building manager can’t go ahead and commission work – i.e. ask someone to do the work and pay them for it – without approval by the EC or strata manager.
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@scotlandx said:
So you say to the police, hey I got this letter about me parking in a visitor space and they claim I damaged the gate and are asking me to pay. What would the police do/say?The police would tell you it is a private matter. It is a private matter and should be dealt with as a private matter unless/until it reaches a certain point.
I agree, 100 percent – I was just making the point that it isn’t really fraud, not that it IS a police matter.
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@scotlandx said:
Fraud is a criminal offence, it isn’t a matter for NCAT.Hate to be pedantic … but, hell with it, I will. If it’s a criminal offence, shouldn’t it be a police matter?
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@daphne diaphanous said:
Thank you JimmyT. Does that mean subclause 2 prevents an owner attaching a pergola to a back wall?A pergola? It stops you hanging a pot plant off a hook!
All sarcasm aside – that’s exactly the kind of thing it is intended to prevent (without proper approval and the requisite special resolutions).
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@daphne diaphanous said:
I need help understanding the following two clauses in our by-laws. The obvious typo in subclause 2 is not mine. Our SP was registered prior to 1/7/97.Damage to common property:
1) An owner or occupier of a lot must not mark, paint, drive nails or screws or the like into, or otherwise damage or deface any structure that forms part of the common property without the approval, in writing, of the owners corporation.
OK, think of it this way, the paint on your interior adjoining walls is yours but the first molecule of wall underneath is common property. So you can paint the interior any colour you like but when you start hammering nails or drilling holes you are entering a world of potential pain. The same applies to the exterior of your front door, which is comom property all the way through to the first molecule of pain on the inside.
Why is this so restrictive? I was at a conference recently where a strata lawyer told the story of a client who was mounting a flat screen TV on his wall when his power drill hit a hot water pipe servicing several units. Tens of thousands of dollars worth of damage later, he understood the thinking behind what seems to be an over-cautious approach to common property.
2) An approval given to the owners corporation under subclause (1) cannot authorise any additions to the common property.
I cannot make sense of subclause 2. Can anyone help please?
There is a heritage building right in the middle of Sydney where a real estate agent dominated the EC, sold adjoining apartments and then used the equivalent of clause 1 to allow the apartments to be combined.
And while that was a major pain for other residents, it was even worse for the people who bought the flats believing they had permission to remove walls.
The authorities came along, saw what had been done to their heritage listed interiors and demanded that they be reinstated using bricks and timber that were at least as old as the materials that had been removed.
All that aside, clause two is there just to make sure that if you are thinking of doing a bit more than hanging a picture, you know there will be a whole other set of hoops for you to jump through.
What’s an addition to the common property? Anything attached to CP that wasn’t there before (or, indeed, a bit of CP that has been removed).
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@scotlandx said:You can’t put up a motion at a General Meeting of the OC in relation to minutes of the EC, as it is a different forum. The people voting at a general meeting are different to the people voting at an EC – people who were not in attendance at a meeting cannot then vote on whether or not a minute of that meeting was wrong.(also refer below re the general principles that apply to minutes)
Well, there you go. Reading ScotlandX’s explanation, it all makes perfect sense, although I wonder if there is a subtle but significant difference in what I was suggesting. I didn’t mean that the Owners Corp should rescind the decision of the EC meeting, just that it somehow go on the record that the minutes had been a bit suss. Having said that, I can see how that might not fly.
Again, perhaps the correct motion would be to ask the meeting to instruct the EC that their minutes should be accurate and not misleading as to the content of discussions and and intent of decisions made. And again, wouldn’t any supporting explanatory comments then be on the record?
By the way, I know motions can be rejected by the chairman if they would contravene the law – but this one would simply be asking the EC to make sure that they were abiding by it. Would that work?
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Cosmo is right, that ship has sailed but you can put another boat in the water (to extend the analogy).
You could try to have a letter to the EC correcting the minutes adopted as a matter of record (best of luck with that). Or you could wait until your next general meeting (probably your next AGM) and put up a motion that the minutes of the specific meeting be noted as suspect and misleading.
You motion has to be added to the agenda (if you get it in before the agenda is issued) and you are entitled to add an explanatory note to that motion which will also go on the record, even if the motion is defeated. That way you have recorded your dissent and it is a much fresher record than months-old minutes of a meeting everyone has forgotten.
Just to twist the knife, you could propose a motion that the in future the EC minutes must not be issued until they have been approved by all members of the EC. I know what the argument against that will be – there is no time if they are to fulfil their statutory duty of issuing the minutes within two weeks (??) – but the very fact that the motion is there means everyone will be alerted to the fact that there is a problem with the minutes.
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Two points:
You were at a meeting at which proxies were disallowed because a) they were too late for the first meeting and b) because they were disallowed for the first meeting.
I have quoted a Fair Trading document that explains why that would have been the case.
I also think you are confusing the word ‘may’ with ‘must’ – there are several circumstances under which a meeting may be called – one of them being that enough owners petitioned the EC secretary or that the EC members decided that there was good enough reason to hold a meeting.
Given that the General Meeting is the “highest court” within strata, I can’t see the problem with the EC deciding on a ‘ring-around’ to hold a meeting provided that meeting was properly notified to all owners as required by law.
Otherwise I don’t think you can read too much into owners being given a chance to express their views and vote on what they want.
As for the proxies being disallowed – in the first place it was because someone hadn’t taken the time to find out how proxies actually work. For goodness sake, it says on the bottom of the form that they have to be in 24 hours before the meeting. Or did they not have the proxies on the correct form.
The second rejection was on a technicality and while someone who was at the first meeting might not be able to make it to the second, you have to draw the line somewhere.
I totally get why most people don’t understand most of what goes on in strata. But if I was about to lose a beloved pet or have to move home, I’d make damned sure I found out what I needed to do.
There is good introduction to all this — the Strata Living pamphlet issued by Fair Trading. It covers most of the points raised here.
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@Wirihana said:
Yes Jimmy, it is a large scheme and I am unable to find anything in the legislation that only permits proxies to be presented to the original meeting and not to the adjourned meeting.I think we need look no further than the official proxy form – which must be used for proxies – which defines the proxy to be issued “for the purposes of meetings of the owners corporation (including adjournments of meetings).”
In a footnote at the bottom, the form says: “This form is ineffective unless it … is given to the secretary of the owners corporation at least 24 hours before the first meeting in relation to which it is to operate (in the case of a large strata scheme).” The bold emphasis is mine in both case.
I’m no lawyer but I would take those two statements to mean that proxy votes for an adjourned meeting have to be valid for the original meeting.
The reason I thought that the meeting could be declared invalid was because it was not called by a formally convened executive committee meeting. I understood this to be necessary and a function that cannot be delegated to the strata manager (Mgt Act Schedule 2 31 (2)).
Schedule 2, 31, (2) says this: “A general meeting of an owners corporation … which is not an annual general meeting, may be convened by the executive committee at any time.”
I don’t see anything in that clause that precludes a strata manager from calling a general meeting if they have delegated powers (as most do). All it says is that an EC can call a meeting any time it likes. In fact, if owners holding 25 percent of the votes ask for a meeting, in the absence of the secretary, any member of the EC can call the meeting.
For further clarification, I’m indebted to our friends at Strataman whose excellent website says this about Extraordinary General Meetings (any general meetings that aren’t AGMs):
EGM’s are held:
when a special matter (that cannot wait until the next AGM) needs to be considered – such as to authorise major works, raise a special levy, change by-laws, appoint a Strata Manager, etc
when a request for an EGM is received by the Executive Committee (EC) from one or more persons eligible to vote and having a unit entitlement value of at least 1/4 of the total unit entitlement for the scheme
when there is a majority vote of the Executive Committee for the holding of an EGM
How to convene an EGM
EGM’s are convened by the secretary of the Owners Corporation (OC) or the Strata Manager … forwarding a notice of meeting to all owners, first mortgagees and covenant chargees, as shown on the strata roll.
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Just playing devil’s advocate here, but I’m wondering on what grounds you would try to have the meeting declared invalid. It sounds like the chairman was nit-pickingly precise in addressing the rules (although I’m confused about which motion was allowed and which was struck out).
I don’t think you can get a meeting overturned just because it was badly conducted (there are no set standing orders for meetings, more’s the pity). If someone who should have been allowed to speak was silenced, or votes that should have been counted weren’t, that’s a different thing.
Having said that, the 24 hour rule on proxies only applies to large strata schemes. Does yours have 100 lots or more? If not, the proxies should have been counted and that would be your grounds for having the meeting overturned.
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I wrote about this HERE a few months ago and there was considerable discussion stemming from that HERE.
My personal view is that if the resident is still there when the guests visit, then there’s not much harm. However, if they are using the service to get guests for an empty unit, it’s a short-term let.
Others may have less liberal views.
By the way, something else that hasn’t been raised is house swaps, when the resident clearly can’t be in residence when the guests arrive.
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