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This would be tricky in any case but the fact that it’s company title complicates things even further.
In company title, you may not have the same rights as in strata so your relationship is really with the landlords who are obliged to ensure the property is properly maintained.
I would send them a polite note asking for compensation but informing them that they in turn are probably entitled to claim that amount from the building’s board (most likely via their insurance) and you will support them in that, if need be.
Explain that you don’t blame the landlord but there is a chain of responsibility and they are the next link for you.
If that fails you can apply to the CTTT for compensation on the grounds that the landlord or their agent failed to properly maintain the property (or make sure the Company board did so).
You’ll find a Tenants Union factsheet on that HERE.
And I wouldn’t worry about the new owners too much – this is a claim against the previous landlord and it doesn’t affect them
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@mac said:
I have spoken to the Strata Manager who advises this is a notice of a breach of by law and a request to comply. If I don’t comply the SM will refer it to the EC for them to request a formal NTC. Then your process can kick in.Mac
I would say, as nicely as possible “bring it on”.
At the EC meeting, you can ask to speak and then ask why you have been singled out, what the problem is and if there isn’t a better way of dealing with these issues.
If they refuse to let you speak or refuse to answer your question, this is further evidence that they are not really interested in running the building properly and instead just want to order people around.
In fact, I would be very surprised if this wasn’t one owner flexing their strata muscles via the by-laws. The EC has no compulsion to enforce the by-laws if they don’t think that is necessary (although individual owners can take action if they feel they should).
So ask for your moment in the spotlight and make it clear that you are happy to comply with reasonable requests that are universally applied. There is an old saying that bad laws are worse than no laws and it could be that your by-laws fall precisely into that category.
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@Austman said:
scotlandx’s reply might be OK for NSW.But what about other states (eg VIC) where there is no requirement to give the names of tenants to the OC.There same situation must occur. What happens then? Are the tenant names actually needed before notices or orders can be issued? I suspect it’s the owner who then gets the notice or orders.The Owners Corporation Act in Victoria says that any owner who will not be in their unit for more than three months must give the Owners Corp their address. It doesn’t, however say how you serve a breach notice on someone who has declined to do so and therefore can’t be located.
135. Address of absent owners
A lot owner who does not occupy the lot or who will be absent from the lot for more than 3 months must advise the owners corporation of the lot owner’s mailing address for service of notices and any changes to it as soon as possible.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.
Just to make sure everything is as it should be, did the Notice to Comply (NTC) come on THIS FORM. If not, it is meaningless. Also, did it come from the secretary of the EC, in which case there should have been an EC meeting that discussed the breach and minuted the result. Again, no meeting or minute, no problem.
If you feel you are being discriminated against, you could take a counter–claim against the Owners Corporation at Fair Trading in which you ask the Owners Corp to grant permission restrospectively or issue NTCs to all owners for their shelves, pictures and mirrors.
You will be able to present this argument at a mediation where, at least, you will be able to get to the bottom of why this is happening. Use THIS FORM to apply.
The application will cost you $78 (unless you are over 60 or a pensioner, in which case it’s $10).
Or you could let them take you to the CTTT to have a penalty applied – this costs you nothing except your time. The CTTT will bounce the NTC if all the paperwork isn’t correct, could impose a minimal fine, if any, and may in fact decide the NTC is discriminatory and reject it on those grounds.
But let’s assume there was an EC meeting and a decision to issue the NTC, or your strata manager was using delegated powers.
In that situation I would write them a note telling them that you believe the notice is discriminatory and why and that you are happy for them to take the matter to the CTTT where an independent arbiter can decide on a penalty, if any.
By the way, I’m not advocating free-range nailing and drilling of common property walls but once it has been done, and disaster hasn’t befallen the building, I would wonder why anyone would care.
If this is becoming a problem throughout the scheme, what your building needs is a sensible by-law that allows people to do that kind of work but bear the full consequences if they don’t use a licensed builder, or do it badly and common property or other owners’ personal property is damaged.
Persecuting individuals is not the best way to look after common property.
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Interesting. If the notice tells you to comply with a by-law that says you shouldn’t put nails in common property, then to comply surely all you have to do is not put in any more nails. Or does it say something else (or am I being dumber than usual)?
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If one member of the committee has given up an exceptional amount of their time and energy for the greater good of everyone else, why shouldn’t they get some sort of retrospective reward?
That said, I wonder about those who come to the AGM with a detailed account of their hours spent etc etc. If you want paid, say so up front and let people at least know that’s what you’re thinking (regardless of whether or not they intend to comply with your wishes).
And be careful that the EC’s ‘generosity’ isn’t just creating a precedent for future payments all round.
By the way, I have heard of an Owners Corporation Chair who gets more than $100,000 a year in ‘consultancy’ fees for ‘advising’ the EC on matters related to their strata scheme. Make of that what you will.
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We had a really interesting session at the OCN seminar yesterday (November 9) where a strata consultant explained how the behaviour of everyone in a building sets the tone not only for tenants as well as owner-residents, but affects the value of your property.
Rents and property prices can head south as soon as uncollected junk mail builds up, damaged common property isn’t repaired and the whole place looks like a backpacker hostel after a big night.
I think in your position, I would be starting a discussion – with tenants and owners – about the kind of building you live in and what you want to do about it, if anything.
It sounds to me that just a little tightening up of the rules would make a huge difference to everyone’s lives. Hire a retired person to tidy up around common property (and remove abandoned clothes from the line) so no one has to lift a finger but the place already looks better.
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I have just realised that RTNQ may be an acronym for Retired To North Queensland. Is that so? In which case, it changes everything.
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I have just discovered this (below) on the Tenants Union website. It suggests quite clearly that the Landlord can refuse permission to sublet if the tenant isn’t going to be living in the property or if the property is going to be overcrowded. It also says the landlord can withhold permission if the=y wish if the tenants are not going to be resident in the sub-let.
That puts the onus right back on the landlord to make sure their tenants are abiding by your by-laws.
So my advice would be to pass a by-law limiting the number of residents per apartment (based on the numebr of rooms).
Pass the by-law allowing video surveiillance of common property.
Gather your evidence and that put the heat on the landlord at the CTTT.
Or, alternatively, explain to the landlord that you are about to get very heavy with them, there could be substantial fines involved, they have the right to end the sub-let and the best thing for everyone is for them to just do it.
Transfer or sub-letting with landlord’s consent
With the landlord’s written consent, you can:
- transfer your tenancy under a tenancy agreement to another person, or
- sub-let the premises (or part) to another person.
The landlord must not unreasonably withhold consent when:
- you ask to transfer and one of the original tenants under the current tenancy agreement will remain as a tenant, or
- you ask to sub-let and you will still occupy the premises.
Landlord may withhold consent
The landlord may reasonably withhold consent if:
- the number of proposed occupants is more than allowed by the tenancy agreement or planning laws
- the landlord reasonably thinks that the premises will become overcrowded.
If the proposed transfer or sub-letting is for the whole tenancy or the whole premises, the landlord can withhold consent – whether or not it is reasonable. (My emphasis – JT)
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@Stumped said:
I live in the most wonderful of buildings, zoned ‘Permanent Residential Accommodation Only’, located in a perfect position, the major problem is that we have large-scale short-term letting, organised and protected by our Caretaker and Executive Committee. And it has been going on for 16 years, in some 40 flats under the Caretaker’s control.
I am curious to know if anyone has explored the option of applying to the CTTT for the statutory appointment of a strata manager who would put an end to all this opportunist profiteering fairly promptly, wouldn’t they? It costs $78. It would be neither easy nor straightforward but simpler that trying to defeat fat cats and their cronies using the flimsy structures offered in our strata democracies, I’d have thought.
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@Two Hills said:
I wanted to ask about special levies. Living in an older set of over 160 units ,which is over 30 years of age. I believe that large special levies were not the only way that the OC has of raising the required funds for large expenditure items e.g. roof replacement. These large special levies are very difficult to afford especially by retired & single parent owners for example. What other ways can be employed to spread the load over a longer time ?There are indeed. Our long-term sponsors Lannocks provide a variety of loan packages for owners Corps in exactly your situation. In fact, Paul Morton, their main man, puts up a fairly compelling argument for NOT saving up your pennies in large sinking funds and instead using strata loans as and when you need them.
Go to our HOME page, scroll down and click on the Lannocks ad then give them a call. It’s a viable alternative and well worth exploring.
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Nugalbags, I’m sure you are able to discern the best way forward from all of this rambling to and fro. If you have the support of your EC and they have the support of the majority of the community, the mechanism is there to take this person out of the picture without breaking any laws, by-laws or risking defamation or any other legal redress. It’s democracy at work.
If your fellow EC members and other owners disagree with you, so be it. That’s politics.
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There are two very interesting areas of the strata Act relating to tenants and sub-tenants (lessees and sub-lessees, as they are referred to) particularly as they are commonly ignored.
The first, Section 119 (below), refers to the the landlords’ duty to inform the owner’s corporation of the identity of their tenants within 14 days of a lease being signed – penalty five units ($550). The same obligation applies to tenants who sublet to other tenants they have 14 days to inform the owners corp and again the maximum fine is $550.
The other one – and this a slightly longer bow – requires tenants and sub-tenants to be given a copy of the by-laws. Section 46 (also below) requiires the Landlord to provide a copy of the by-laws to the main tenant (or be fined up to $110) and the main tenant to provide by-laws to the sub-tenants (max fine $110).
OK, that’s all well and good but how do you prove these breaches are occurring.
My recommendation would be to pass a by-law allowing all areas of common property to be under video camera surveillance.
You then discreetly position a camera near the doors of the offending apartments and film the comings and goings over a reasonable period of time. Watching who regularly goes in at night and comes out in the morning would be a reasonable indication of who is living there. Once you have gathered the evidence, you can start proceedings through the CTTT for breaches of section 119. As these breaches carry statutory penalties, you can apply straight to the CTTT for the imposition of a penalty without going through mediation at Fair Trading.
If you want to go the whole hog and get them for failure to supply by-laws, you can knock on the door, with a reliable witness and ask to see a copy of the by-laws. You could tell them you will come back the next day to give them a chance to find them and failure to provide them would be an indication that they were never given them Even better, if you got them to sign something saying they had never received them, that would be persuasive.
Oh, by the way, a change to the by-laws (like the one for the video cameras) triggers the legal requirement for landlords to issue a new set of by-laws. Neat, eh?
Now, before you go any further, run this past a strata lawyer to see if it might fly. If it does, you could drive these bogus tenants out of your lives for good – but in reality, the first sign that they are going to cop fines will have the landlords reaching for their eviction notices on the grounds that the tenants have breached their agreement by breaching by-laws. Sweet!
119 Notice to be given to owners corporation of leases or subleases
(1) If a lot is leased, the lessor must give notice of the lease, in accordance with this section, to the owners corporation within 14 days after the commencement of the lease.
Maximum penalty: 5 penalty units.
(2) If a lot is subleased, the sublessor must give notice of the sublease, in accordance with this section, to the owners corporation within 14 days after the commencement of the sublease.
Maximum penalty: 5 penalty units.
(3) If a lease or sublease of a lot is assigned, the assignor must give notice of the assignment, in accordance with this section, to the owners corporation within 14 days after the execution of the assignment.
Maximum penalty: 5 penalty units.
(4) The notice must specify:
(a) the name of the lessee, sublessee or assignee, and
(b) the date of commencement or assignment of the lease or sublease, as the case requires, and
(c) the name of any agent acting for the owner in respect of the lease or sublease.
46 How does a lessee get information about the by-laws?
(1) If a lot or common property in a freehold strata scheme is leased, the lessor must provide the lessee with a copy of the by-laws, and any strata management statement affecting the lot or common property, within the time and in the manner required by this section.
Maximum penalty: 1 penalty unit.
(2) If a lot or common property in a leasehold strata scheme is sublet, the sublessor must provide the sublessee with a copy of the by-laws, and any strata management statement affecting the lot or common property, within the time and in the manner required by this section.
Maximum penalty: 1 penalty unit.
(3) The copy of the by-laws or strata management statement must be provided to the lessee or sublessee within 7 days after the lessee or sublessee becomes entitled to possession of the lot or common property.
(4) The copy of the by-laws or strata management statement (including any further copy of by-laws that have been amended) must be:
(a) served personally on the lessee or sublessee, or
(b) if the lease or sublease relates to a lot—served on the lessee or sublessee in any manner allowed by this Act for service of a document on the occupier of a lot, or
(c) if the lease or sublease relates to a lot or common property that is fully enclosed by walls or other structures—left in a conspicuous position at the lot or on the common property.
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@PMC2 said:
Hi jimmy,There are obviously two sides to this discussion. My concerns are due to the ‘Judge Judy’ style finger pointing… Can you be certain that “nugalbags” isn’t the troublemaker?
No, but I chose to work on that assumption. Let’s just say my advice was for ECs who find themselves with a troublemaker in their midst and want to get rid of him or her.
Forward planning is fine; formation of a clique is not!
I can’t think of any level of politics that doesn’t involve a group of people who have similar aims working together to achieve them. It becomes a clique when the sole collective aim is maintaining their power and influence, rather than trying to achieve something for the greater good.
You stated “tell the meeting that the entire EC ticket will withdraw their nomination because the EC will be totally dysfunctional otherwise” asserting a dictatorship, not a suggestion to seek “support of their co-owners”.
Dictatorship is one person acting alone with no regard for the opinions of others. This is a group of people saying, when their move has been challenged or rejected, you can elect who you like but if you think the committee should have to put up with this person’s behaviour, then you do the job because we don’t need it. I call it collective bargaining.
You suggested doing this prior to an AGM, not “a considered and widely discussed strategy”.
Well it depends what you mean by ‘prior’. I meant days and weeks. If I had mean immediately prior I would have said so.
I have too many years with “disruptive members” on committees by default… “rusted on”, as cited in Mr Anthony Robert’s Strata Reforms articles. I endured meetings disrupted by the chairperson, secretary and treasurer whose actions are anything but democratic, approving expenditure without consulting the other EC members and even sanctioning spending required to be done by the Owners Corporation.
Yes, and those are things you can either take to a general meeting or refer to the CTTT. A bullying chairperson is bad enough – and the EC always has the opportunity to sack them from the office (though not the committee). But someone doing what you have described, according to your last posting, can easily be dealt with by the CTTT because it is illegal (although i would reiterate that it is far from that easy).
“The open and honest way to deal with this would be for each of the people who have suffered at the hand of this person to stand up at the AGM and describe this person’s behaviour in detail”… Again, could this lead to a defamation claim.
Members of the owners corporation are allowed considerable “privilege” under defamation laws and the allegedly defamed person would have to prove malice as well as that the comments were not relevant to the discussions at hand (the election of committee members). However that doesn’t mean that legal action can’t be threatened or attempted – which is why it is better to do all this the way I described.
I am of the opinion committee members should only be allowed to make decisions on minor issues (colour of paint, finishes, cleaners, etc.) with everything else set out as mandatory and performed immediately by the Strata Manager (who should be held accountable) without any interference of committee members. Autocratic owners should not be allowed hold other residents to ransom, EVER! It’s not a perfect system, hence why strata reforms are currently happening.
These specific opinions are interesting but they are hardly relevant within the bounds of this discussion. A reasonable analysis of the proposed changes to the laws will reveal the general thrust is to give people more power to run their own lives the way they want … or, at least, that’s what the Minister said to me on the phone this morning. I think you’ll find there are fewer restrictions and more transparency in the finalised proposals.
Dare I say you have witnessed EC penny pinchers or the members who freely disregard by-laws at the detriment of others, yet demand everyone else abide by them?
Correct. And i have seen them turfed out on their ears using exactly the method I described here.
Your argument rests on the majority being ‘correctly’ informed, who’s to say the shenanigans are not from autocratic owners wanting to dictate or rort the system?
Evil prospers when good men (and women) do nothing. People have to be allowed to make their own choices and, sadly, one of those choices all too frequently employed in strata is to do nothing because the status quo always feels safer than the great unknown. But let’s stick to the question we have before us and work on the assumption that there is a disruptive person in a committee and how do you get them out in the most effective way
Strata Schemes Management Act 1996 – Sect 162, relates to the appointment of a Compulsory Strata Manager. This is hard to prove, but is an option if bad decisions or dysfunction by EC members is allowed to fester.
Hard to prove? Impossible unless that single disruptive person has caused the prime functions of the Owners Corporation – i.e. its legal obligations – to be neglected. The only occasions when I have seen that avenue explored in the case of a single disruptive person has been when the person concerned is the chair and they have led the owners Corp to be in breach of the Act. That’s not what we are talking about here.
I reject your ‘mischievous’ comment…
Withdrawn, with apologies …
… it is usually the individual behaviour of committee members not doing what’s required of the act that causes Supreme Court claims. Look at your forum topics to see highlighted issues such as illegal spending, notices, breaches of duties which have all been committed by rouge Strata managers, Executive Committee Members and even Building Managers.
In the real world of strata – with really disruptive people and real bullies –”citizens” shouldn’t have to be smarter, the laws should disincentive wrongdoing in the first place. I have had many watertight cases at CTTT, they all ended up at the District Court.
Two points – we’re not talking about what should and shouldn’t happen, we’re referring to real life, right now under the current laws and by-laws. Oh, and at the risk of sounding facetious, if you had watertight cases, then they wouldn’t have gone to the District Court. Even so, that supports my argument that the CTTT is not a magic wand that cures all ills. You have to take responsibility for your own community and the way it works. There are no StrataCops to come and enforce the law.
How about Strata Cases on Austlii are for claims under negligence? Even breaches of section 62 constitute negligence when all three clauses are breached. The latest Dr Thoo case asserts this well.
I don’t understand this reference. There are no cases that I know of where an Owners Corp has suffered the statutory appointment of a strata manager because they formed a voting bloc to exclude someone from an executive committee using entirely legal means to do so. Oh, and Dr Thoo lost his claim to have the common property upgraded so I don’t see the relevance of that either.
Lastly, I did not attack you, I merely suggested that your advice could be construed by disruptive committee members. My opinion was that bullying someone off a committee, who we only have one person’s word that they are ‘disruptive’, can also be committed on the ‘good people’ can it not?
Attack? Criticise? Censure? There was a sense of outrage that I would be telling the good people of StrataLand how to quickly, quietly and efficiently get rid of disruptive elements. And yes, it can be used to get rid of good people too – in which case the owners, by supporting that, will get the EC they deserve … as they inevitably discover.
I believe there are many successful applications for a Compulsory Strata Management appointed by CTTT Adjudicators. The Owners – Strata Plan 5709 v Andrews [2009] NSWCA 189, Hatzvy v Grossbard and Owners Corporation SP13671 (Strata & Community Schemes) [2010] NSWCTTT 477.
Yes but these were not for forming a voting bloc to remove a disruptive member – which is the whole point of this discussion. These were for other issues entirely, as you well know.
If I offended you, I sincerely apologise, but I would like to reiterate I was merely suggesting that your response (well respected by Flat-Chat followers) could be used in a very bad light, and I am still of the opinion that it is more than likely a ‘bad’ element of Strata Society that would do just that.
As I said below, I have had it done to me so I know how it feels. However, in a case where there is a persistently disruptive member of an EC, you have yet to offer a solution that is more effective and less disruptive to the community as a whole than what I recommended.
Seriously, working on the assumption that there are disruptive members of ECs who manage to get themselves elected by default or other means, what is your proposal for removing them with the minimum pain and fuss?
Failing that, let’s agree to differ because I’m sure this discussion is becoming a tad tedious for other readers of this website.
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It sounds to me that this will not stop caretakers/building managers who are owners being on the committee so in John T’s situation you would not be disadvantaged. I would add that a good building manager should not need to be on the EC to give good advice. In fact you should expect them to attend your meetings regardless to assist you in making good decisions.
Although we need to wait until we see the nitty-gritty of the legislation, I’m not sure that caretaker-owners and their ilk won’t be banned. The affected person can still exercise their democratic rights via general meetings.
In any case, there are plenty of ECs where building managers, caretakers and strata managers attend, offer advice and participate in discussions without having a vote. That would be the ideal model for me.
Don’t forget we are also about to have non-voting tenants on committees so those tables are starting to get a bit cramped.
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