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@scotlandx said:
Unless the OC is pretty certain that the entitlements were unreasonable at the time of allocation, then they should ask themselves why they are making the application.
I guess one good reason would be if the developer had set the UEs themselves and skewed the figures for the larger units or commercial properties to either benefit themselves (or mates) or to make them more attractive to purchasers. That’s when this delicious clause kicks in, meaning the developer has to pay back any over-payments plus the cost of making the application:
183 Order for reallocation of unit entitlements
(6) Ancillary orders that may be made if original valuation unsatisfactory
The Tribunal may, if it makes an order allocating unit entitlements that were not allocated in accordance with a valuation of a qualified valuer and, in the opinion of the Tribunal, were allocated unreasonably by a developer, also order:
(a) the payment by the developer to the applicant for the order of the costs incurred by the applicant, including fees and expenses reasonably incurred in obtaining the valuation and the giving of evidence by a qualified valuer, and
(b) the payment by the developer to any or all of the following people of such amounts as may be assessed by the Tribunal to represent any overpayments (due to the unreasonable allocation) for which liability arose not earlier than 6 years before the date of the order:
the lessor of a leasehold strata scheme
the owners corporation
the owners of lots.
(7) Recovery of amounts awarded
An amount ordered to be paid under this section may be recovered as a debt.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.
We did have some correspondence recently from a woman who was being defaulted on her levies because she refused to pay one-twelfth of the total budget of her 12-unit block, seeing as she was on the ground floor at the back and the chairman was paying the same for the top floor at the front.
However, this building did have Unit Entitlements properly calculated at inception – it was just that the chairman was too lazy/greedy/stupid to work them out properly.
UEs can never be an exact match to property values (they fluctuate too much) but there definitely is a very close correlation.
And let’s not forget that in Queensland they split the UEs into one fund based on the share of the insurable value of the property and they other on the usage of common property.
And, yes, they got themselves into a right mess there which I think they are just sorting out now.
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@kiwipaul said:
My understanding of how a SM is appointed is that if you recieve a ruling that a SM is to be appointed the person (or EC or OC) that won the ruling has to provide the details of the SM. I would assume they are given a suitable time frame to find one.KP, this is specifically about a case where neither side of a dispute has sought the appointment of an SM but the adjudicator has decided that is the best way to go. In that kind of case, no SM would have been pre-selected because no such order was being sought. (See my last response below).
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The statutory appointment of a strata manager under Section 163 (3) – where no such appointment has been sought by parties in dispute but the adjudicator has decided that the strata scheme is not functioning to the extent that one is required – is a relatively rare occurrence, so much so that I have never received a single email about this in the 10 years I have been writing Flat Chat.
I would see this as an order of ‘last resort’ by an adjudicator who can see no other way of getting a strata scheme back on track. This is very different from an owner or group of owners requesting such an appointment and should not be relied upon as a probable outcome in a case.
When owners request a statutory appointment, they are expected to have already contacted a strata manager who has agreed to take over when appointed. NB: This doesn’t mean the strata manager is working for the plaintiffs, just that he or she has agreed to take on the case.
In the past, when statutory appointments were made, I believe the CTTT had a panel of strata managers to whom they could turn. I would assume this is the system they would use under a 162(3) order since the owners can’t be expected to come with an SM in tow if they don’t know one is about to be appointed.
If the appointment of a statutory manager is what you want, then you should find one prepared to take on the role and apply accordingly, presenting as strong an argument as you can for this order.
Don’t hope that an adjudicator will intuitively reach this conclusion because they probably won’t.
Finally, it’s worth noting that the statutory strata manager can take over all the powers of the Owners Corp and the existing strata manager. In this case (pages 11-13 of this document) one owner refused to recognise the levies set by the statutory SM who had held a general meeting to establish the budget for the scheme.
But the only ‘mistake’ the SM had made was to hold the meeting – this was not required under the Act since he had been given all the powers and functions of the Owners Corporation and could make any decisions about the running of the building that were required.
This doesn’t exactly answer your question but it does shed some light on the absolute powers available to an appointed Strata Manager.
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With two Notices To Comply having been issued and the police having been called, I think it’s time to ramp this up to the next level and apply to your local court for a Noise Abatement order.
That is a much more powerful instrument than a CTTT order in that it is a criminal offence to breach a court order and the police can arrest the miscreant if they do so.
Download and have a look at the document Dealing with Neighbourhood Noise and this one – Seeking a Noise Abatement Order.
Fair Trading and the CTTT aren’t particularly well equipped to deal with “domestics” and the process can be long and stressful with no guarantee of an acceptable outcome.
Gather your evidence (including police reports) and, with the support of the Owners Corp and individual owners, you can get a quick and effective solution through the local courts.
Regarding the unpaid levies, at the first sign of any such “retaliation” you could point out that not only are they subject to a mandatory penalty interest charge of 10 percent, they are also liable for all the reasonable costs of debt recovery, including the charges imposed by a debt recovery agency and, if necessary court costs. If they still won’t pay, you can garnishee the proceeds from the sale of the unit so that the Owners Corp gets paid before the money even hits the bank.
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Section 183 (below) is the relevant part of the Strata Act and I think your strata manager is right – you only need an ordinary resolution to ask for a ruling (given that any individual owner is entitled to seek an order under this section).
However, a special resolution would carry a lot of weight with the adjudicator as it would indicate that the vast majority of owners agreed with the proposed changes.
Section 183 is long and complicated but the key element is to include a valuation by an accredited valuer which indicates that the valuation was unreasonable to begin with, or became unreasonable because of a subsequent re-valuation of the unit entitlements, or became unfair because of a change in circumstances (such as an owner acquiring common property and attaching it to the title of their lot).
I can’t see why you would need a special reolution for this – there’s nothing about that in the Act – but I have a sneaking feeling that a CTTT Order is not required if there is unanimous agreement of all owners to change the UEs. Maybe someone with direct experience can enlighten us.
183 Order for reallocation of unit entitlements
(1) Tribunal may make order allocating unit entitlements
The Tribunal may make an order allocating unit entitlements among the lots that are subject to a strata scheme in the manner specified in the order.(2) Circumstances in which order may be made
An order may be made only if the Tribunal considers that the allocation of unit entitlements among the lots:(a) was unreasonable when the strata plan was registered or when a strata plan of subdivision was registered, or
(a1) was unreasonable when a revised schedule of unit entitlements was lodged at the conclusion of a development scheme, or
(b) became unreasonable because of a change in the permitted land use, being a change (for example, because of a rezoning) in the ways in which the whole or any part of the parcel could lawfully be used, whether with or without development consent.
(3) Matters to be taken into consideration
In making a determination under this section, the Tribunal is to have regard to the respective values of the lots and (if a strata development contract is in force in relation to the strata scheme) to such other matters as the Tribunal considers relevant.(4) Application to be accompanied by valuation
An application for an order must be accompanied by a certificate specifying the valuation, at the relevant time of registration or immediately after the change in the permitted land use, of each of the lots to which the application relates.(5) Qualifications of person making valuation
The certificate must have been given by a registered valuer under the Valuers Act 2003 authorised under that Act to make such a valuation (a qualified valuer).(6) Ancillary orders that may be made if original valuation unsatisfactory
The Tribunal may, if it makes an order allocating unit entitlements that were not allocated in accordance with a valuation of a qualified valuer and, in the opinion of the Tribunal, were allocated unreasonably by a developer, also order:(a) the payment by the developer to the applicant for the order of the costs incurred by the applicant, including fees and expenses reasonably incurred in obtaining the valuation and the giving of evidence by a qualified valuer, and
(b) the payment by the developer to any or all of the following people of such amounts as may be assessed by the Tribunal to represent any overpayments (due to the unreasonable allocation) for which liability arose not earlier than 6 years before the date of the order:
the lessor of a leasehold strata scheme
the owners corporation
the owners of lots.
(7) Recovery of amounts awarded
An amount ordered to be paid under this section may be recovered as a debt.(8) Who may make application?
An application for an order under this section may be made only by:(a) an owner of a lot (whether or not a development lot) within the parcel, or
(b) the owners corporation, or
(c) the lessor of a leasehold strata scheme, or
(d) the local council, or by any other public authority or statutory body representing the Crown, being an authority or body that is empowered to impose a rate, tax or other charge by reference to a valuation of land.
(9) Lodgment of order
The owners corporation must ensure that a copy of an order made by the Tribunal under this section is lodged in the Registrar-General’s office no more than 2 years after the order is made.Note. Section 209 contains provisions with respect to the lodgment of an order made under this section.
(10) Nothing in this section prevents a person referred to in subsection (8) from lodging a copy of an order made under this section.
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@sealion said:
I wish there was more conversation about this.We’re waiting for Kezza to provide more information … but it does seem to be an extreme case although we do have to take into account that this is a report of a conversation rather than the injured party telling us herself.
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Thanks Scotty.
I was looking at the wrong section which, at the risk of labouring the point, illustrates how citing a section of the Act then demanding an answer to a vague question is not helpful to anyone.
The section referred to actually says this:
(3) Order may be made without application in certain circumstances
An Adjudicator may make an order under this section, without an application having been made for the order, but only if satisfied that the management structure of a strata scheme the subject of an application under this Chapter is not functioning or is not functioning satisfactorily.And to add to what Scotty said, what this means is that if an adjudicator, in assessing an application for something entirely different, realises that a strata scheme is seriously dysfunctional, they can use their own judgement to decide it merits the statutory appointment of a strata manager to sort things out.
Bearing in mind that the adjudicator can set different parameters for different situations – it could be for a specific period or limit their control to certain areas like finances or repair and maintenance – this is not necessarily a complete takeover of the running of the Owners Corp.
That said, if the situation had reached such a critical stage as to demand a statutory appointment where one wasn’t requested, I reckon the adjudicator would just give a strata manager full control.
And on a side issue, this is something all Owners Corps and Executive Committees should be aware of. Once a strata manager is appointed, especially one given full control of your scheme, you are gone. At best you are just a group of owners with no powers beyond those given to individual owners under the Act.
You have no say in the running of your building (because you have shown yourself incapable of doing so) and, in all likelihood, all your bad decisions will come back to bite you on the bum.
And it’s even worse that it sounds. If you have neglected to repair and maintain common property, the strata manager has a duty to do so and do so properly. That means that cost is a secondary consideration to having the work done to the best professional standards – because the Strata Manager has a legal obligation to get it done properly (and no financial restraint).
So consider that the next time you put off repairs and consign your sinking fund assessment to the ‘too hard’ basket in a deluded attempt to keep levies low to ensure your re-election at the next agm.
The nicest, friendliest, most accommodating strata manager in the world still has a professional duty to perform and if that requires making decisions about levies and work required, they have a legal obligation to do whatever is required under the Act which supersedes any consideration about what the majority of owners want.
In most cases, the statutory strata manager just stops listening to the former members of a failed EC – why would they do otherwise – and gets on with the job.
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@SMO said:
How is your reply relevant to my post? I’m just saying what scotlandx wrote and how OFT operate, according to Mr. Courtney, are divergent.No, you weren’t “just saying” that. You also said:
I would encourage everyone to throw the comment of Supreme Court Justice Pembroke at CTTT when dealing with some dispute over a section of the Act that has the word must in it, until CTTT understand that must means must.
You have decided that the Act is being operated wrongly and I was pointing out that there is no penalty attached to this compulsion to attend mediation (apart from failure to take part doing serious harm to your case when you take it to the CTTT) so the word “must” carries little weight. There are issues under the Strata Act that do carry penalties for failure to comply, but not this.
Why?
You can’t compel people to give evidence in court so how can you compel them to negotiate at a much lower legal level. There is no clause that says failure to attend mediation means, for instance, you automatically lose or you will be fined. There is no clause that says even if you do attend that you must engage in a negotiation. There is basically an understanding that if you refuse to attend or engage properly in mediation, it will not be looked upon kindly when is goes to adjudication.
But there are plenty of Owners Corps and strata managers who keep their powder dry until adjudication (which is done on paper, not by personal representation) where they can, for instance, explain that they declined mediation because it was a vexatious complaint with little chance of success so the cost of representation at a mediation was a de facto financial penalty against them for not agreeing to whatever the plaintiff was demanding.
All this nitpicking and hair splitting over the meaning of “must” gets us nowhere. Let’s stick to practicalities. One way CCBaxter can discover if his ancient by-law stands up is to challenge it at the CTTT by seeking an order under sections 158 or 159 (see below).
Or he can persuade the beneficiaries of this by-law that their free ride is over and invite them to formulate a new by-law that is mutually acceptable and doesn’t bear the additional and unnecessary cost of litigation.
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).
159Order invalidating by-law
(1) An Adjudicator may make an order declaring a by-law to be invalid if the Adjudicator considers that an owners corporation did not have the power to make the by-law.
(2) An order under this section, when recorded under section 209, has effect as if its terms were a by-law repealing the by-law declared invalid by the order (but subject to any relevant order of a superior court).
(3) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order
(4) An application for an order under this section may be made only by a person entitled to vote on the motion to make the by-law or the lessor of a leasehold strata scheme.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.
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@SMO said:
@JimmyT said:
Hey, if you can’t be bothered to cut and paste them for everyone to read, I can’t be bothered to answer.Great answer Jimmy. That is the way to help strata owners.
Great response, SMO. You still haven’t pasted up the material so other people can see what you are talking about. This website is about sharing information – not just answering individuals’ specific questions.
[Edited after further information received]
And, hey, it turns out I was looking at the wrong section 162 – see Scotty’s answer above.
The section you are referring to says this:
(3) Order may be made without application in certain circumstances
An Adjudicator may make an order under this section, without an application having been made for the order, but only if satisfied that the management structure of a strata scheme the subject of an application under this Chapter is not functioning or is not functioning satisfactorily.Meanwhile 183 B (1)says this:
183B Orders for appointment of strata managing agent
(1) Order appointing strata managing agent to exercise functions of owners corporation
The Tribunal may, on its own motion, make an order appointing a person as a strata managing agent:
(a) to exercise all the functions of an owners corporation, or
(b) to exercise specified functions of an owners corporation, or
(c) to exercise all the functions other than specified functions of an owners corporation.
And they both mean that either an adjudicator or the tribunal can decide, while examining the evidence relating to a completely different issue, that a strata scheme is so dysfunctional that it merits the appointment of a strata manager to take over the running of the scheme.
See the posts from ScotlandX and myself (above) for more details.
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This is a bit complicated so bear with me. Some of the plumbing causing the water hammer may belong to the unit owner, some of it may be common property.
As a general principle, plumbing is an Owners Corp responsibility while it is inside a wall and it becomes the unit owner’s responsibility when it emerges (such as with a tap or shower head)
However, if the owner has done a radical redesign of their kitchen or bathroom, they may have caused the problem. If they have changed common property piping without permission, it would explain why they are reluctant to let plumbers in.
Under section 65 of the Act, the Owners Corporation (Body Corp) is entitled to enter a unit to maintain and repair common property – or even to see if repairs are required. However, except in an emergency, they can’t just rock up and demand entry if the owner won’t allow them in.
They have to apply to the CTTT for an order under section 145 and if the owner still doesn’t allow them in, they can apply for a penalty for ignoring a CTTT order (up to $5500).
In an emergency – say a flood that is affecting other units – the Owners Corp’s workers can gain forced entry to fix the problem. They are liable for repairs to damages caused in gaining entry unless the owner deliberately prevented them from entering, in which case they wear the costs.
As for who pays (in a non-forced entry scenario) it depends whose plumbing is causing the problem – either the Owners Corp or the unit owner. But it’s not the person suffering the noise of the water hammer.
You need your EC chair or your strata manager to explain that the Owners Corp’s plumbers will be coming in whether the unit owner wants them to or not. So he or she can set a time that suits or the Owners Corp will go ahead and make their own arrangements.
Oh, and if the Owners Corp or strata manager tries the old “not our problem – this is a dispute between two neighbours” line, point them in the direction of section 62 of the Act which says: “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.”
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@Kangaroo said:
Thank you. You’re a genius to locate that.Yup!
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