[Jimmy-T]

There is value in a process of consultation and communication that goes far beyond simply choosing the most popular or best scheme.

A smart EC will send out a general principle paper explaining what they intend to do and why.

Most owners will not read it.

They will then ask for owners to submit their own ideas for inclusion.

Most owners won’t respond.

Then, based on responses, they’ll offer a couple of options.  

They might get a response to specific suggestions.

Then they take a proposal to a general meeting and vote on whether or not to go ahead.  This is when people will start jumping up and down and this is when they point out they have had three opportunities to do this and it’s now a bit late.

The EC can’t go ahead with this withoput carrying the majority of owners with them.

If this is an upgrade that involves changes to common property then it will, as KP said, require no more than 25 percent of owners at a general meeting voting against it.

If the EC tries to impose ideas on owners without consultation, they will very soon find themselves opposed by a coalition of owners who don’t like the change, owners who don’t like any change and owners who don’t like having changes forced on them (plus the owners who just don’t like the EC).

That’s why consultation is a good thing, even when the majority of your owners may not care about being consulted.  Doing so takes out a few of your opponents and increases your chances of success.

Oh, and one other thing, ECs are not the be-all and end-all when it comes to ideas.  There are a lot of smart  people in strata – some of them are too smart to ever volunteer to be on the EC. 

 

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[Jimmy-T]

In Queensland you can ask your committee – or strata manager if they have delegated powers – to issue a ‘continuing contravention order’.  Failure to abide by that can lead to fines being sought at a Magistrates Court.  Individual owners can’t issue these orders but if the Body Corporate committee fails to do so, they can apply to the  Body Corporate and Community Management Office tfor them to pursue action.  You’ll find more information HERE.

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[Jimmy-T]

@Kangaroo said:

The Act says that there must be a motion on the agenda for the AGM to set the number of EC members and a motion to elect them. These two motions are ordinary resolutions not special resolutions. And they don’t necessarily have to be in that order.

I am going to stick my neck out here and say we are both wrong. The 2010 regulations say this (emphasis in the following is mine).

17 Election of executive committee
(1) At a meeting of an owners corporation at which its executive committee is to be elected, the chairperson must:
(a) announce the names of the candidates already nominated in
writing for election to the executive committee, and
(b) call for any oral nominations of candidates eligible for election tothe executive committee.
(2) A written or oral nomination made for the purposes of such an election is ineffective if it is made by a person other than the nominee unless it is supported by the consent of the nominee given:
(a) in writing, if the nominee is not present at the meeting, or
(b) orally, if the nominee is present at the meeting.
(3) After the chairperson declares that nominations have closed, the owners corporation is to decide, in accordance with clause 2 (2) of Schedule 3 to the Act, the number of members of the executive committee.
(4) If the number of candidates: 
(a) is the same as, or fewer than, the number of members of the executive committee decided on—those candidates are to be
declared by the chairperson to be, and are taken to have been,
elected as the executive committee, or
(b) is greater than the number so decided on—a ballot is to be held.

 

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[Jimmy-T]

There are so many things wrong with this blatantly unfair proposal that it’s hard to know where to start.

Firstly – and I’m assuming you are in NSW –  the Executive Committee doesn’t set levies.  Levies, including special levies, can only be set at a general meeting.

Secondly, the law demands that levies be imposed on everyone in accordance with the unit entitlements of their lots.

Only a CTTT adjudicator can vary the amounts of levies or decide if certain people shouldn’t have to pay.

Finally, your in-house lawyer should stop giving advice on strata law until they have apprised themselves of at least the basic principles.  

I would tell your aggressive committee member that they need to rethink their proposal and if they try to implement it, you will have them all replaced by a CTTT-appointed strata manager as they are clearly not acting in the best interests of all owners and are pretty much making up strata law as they go along.

I would also be forming a caucus of other investor owners to get better representation on the EC to make sure this kind of attempted fraud can never be perpetrated again.

Meanwhile, to back up your argument, this is what the Act says:

78 Manner of levying contributions

(2)  Contributions levied by an owners corporation must be levied in respect of each lot and are payable  … by the owners in shares proportional to the unit entitlements of their respective lots.

and …

149 Order for variation of contributions levied or manner of payment of contributions

(1)  An Adjudicator may make either or both of the following orders if the Adjudicator considers that any amount levied or proposed to be levied by way of contributions is inadequate or excessive or that the manner of payment of contributions is unreasonable:

(a)  an order for payment of contributions of a different amount,

(b)  an order for payment of contributions in a different manner.

 

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[Jimmy-T]

The chances are that the new owners have negotaiated a deal based on “vacant possession” – even if they intended to rent the place out.  Everything is so much clearer then.

Your best bet is to get in touch with them and tell them that you would like to continue the tenancy when they take over ownership but would prefer to know now if that isn’t in their plan.

This would be a brand new lease and would have nothing to do with the current owner.

The only way the current owner would be able to negotiate your lease into the future, after they have sold the property, would be if it was part of the sales contract (and it won’t be, trust me).

If you had been in the middle of your lease when the sale went through and the landlord hadn’t told you he was planning to sell when he signed your lease, you would only have to give 14 days notice if you found another place now.   

But it sounds like your lease will end when the new owners take possession.  Even  so, don’t wait too long before you start looking for somewhere else to live. 

You can find out more about your rights by logging on to http://www.tenants.org.au. 

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[Jimmy-T]

The problem here isn’t over-charging or, probably, corruption – it’s basic incompetence.

If your current strata manager didn’t know that you can’t have “General Business” on an AGM agenda then she has no business calling herself a strata manager.

If she did know this and chose to fudge the issue, then she is as dodgy as Hell anyway.

If you genuinely fear she is corupt, find out how much is she making on insurance commissions, hidden fees and kickbacks from tradespeople (which you end up paying for in inflated bills).  

And is part of her “nod and wink” to her mates on the EC to ignore your statutory duties to create a sinking fund, for instance. 

I would get rid of this person before she does too much damage to the value of properties in your building. All owners will pay when the fundamental mistakes she is likely to make come to the surface.

I would be telling the EC to call another EGM immediately to resolve this or you will be going to the CTTT for the statutory appointment of a strata manager (which will be a lot more expensive when a properly qualified and informed professional starts unpicking the mess this rank amateur has doubtless left behind).

By the way, $250 per unit per year is a reasonable amount for a strata manager. Many charge more.

If you want to know what a strata manager does, go to Strata Community Australia’s website HERE and get it from the horse’s mouth.

By the way, if this strata manager isn’t a member of SCA, you have even more need to get rid of her pronto.

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[Jimmy-T]

@Whale said:
Gees guys….. are you tartan-clad lot picking on the Whale?

I thought I was agreeing with you.  I am now writing out 100 times “I must make my intentions more clear when I am backing down.”

But seriously, you’re right.  It might be in the wrong place and without permission but it’s someone else’s property.

I also believe the government changed the telecommunications legislation quite radically to allow Foxtel, Optus and mobile phone companies to set up their infrastructures.  You may find that they didn’t need permission to cable on common property (but they should still make good any damage they caused).

By the way, driving to Sydney airport past these new schemes in Alexandria, you see what happens when a central cable system isn’t created for a block.  The infestation of satellite dishes on every other balcony makes these shiny new homes look like a British council house estate.

 

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[Jimmy-T]

JimmyT said:

Firstly, it depends on how old the block is.  In NSW, if it was registered before 1974, the windows and sliding doors are probably your problem.

At the risk of starting an argument with myself, I have amended the above statement in the answer below because I think it wasn’t precisely correct.

In 1974, strata law was changed.  Previously the line defining common property was in the middle of structures (such as external walls).  Thus the balcony doors were considered lot property because the outer edge of the balcony was the common property line, but windows – well, it depends where they were.  

If they were on the outside of the wall, they would probably be common property.  If they were recessed behind the mid point of the wall, they might well be lot property.  Oh, and if the original plan defined them as one thing or the other, that’s what they would still be now.

Simple? Of course not, but as a general rule of thumb, pre-1974 balcony doors probably are lot property and pre ’74 external windows probably aren’t.

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[Jimmy-T]

Just to clarify, this doesn’t mean buildings no longer have to abide by Section 62, it just means that no one can come along and say that common property that’s working perfectly well has to be upgraded to suit more modern demands, or that broken CP has to be fixed to a higher standard that it was originally (apart from abiding by new safety standards, for instance).

However, in some cases it might make more sense to improve the quality of the installations if for no other reason than it might be cheaper to do so in the long run.

For instance, it might be cheaper and more efficient to replace a clunky old lift with a new one.  However, this ruling means that  Mr and Mrs Trendypants can’t buy into your building an immediately demand that you install an el swisho elevator because they don’t like the old one.

And the other ruling means that owners can’t sue for damages if the owners corp refuses or neglects to maintain common property – but they can still take them to the CTTT and get orders compelling them to do so.  However, I believe you could still sue for actual physical injuries incurred as a result of a failure to maintain CP … i think … maybe.

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[Jimmy-T]

@Whale said:

So you shouldn’t interfere with residents’ installations, but as the conduit etc is Foxtel’s property and it was their “employees or agents” who caused damage to and defaced the Common Property during the various installations, your Owners Corporation or its Strata Managers should persist with its approach to Foxtel and request that it rectifies the damage that they caused; photographic evidence and an approach to their customer relations people would help.   

I am now writing out 100 times “I must not advise readers to vandalise other people’s property – especially after too much red wine late at night …”

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[Jimmy-T]

@leif said:
There seems to be too much simplification even by the legal people that then makes it open for wrong interpretations and often the difference between a property registered as domestic is confused with one registered for other use.

There seems to be a consensus among strata lawyers with, for instance, Teys Lawyers also  issuing a press release that says, in summary:

The Section 62 (2) duty to renew or replace fixtures or fittings connotes no more than the installation of one thing in the place of another to achieve functional equivalence;

Anything amounting to improved or enhanced functionality to lot owners requires a special resolution under Section 65 A;

A Section 62 (3) resolution not to renew or replace a particular item cannot be impugned on the basis that those who voted in favour did not in fact subscribe to the view that it was inappropriate to maintain, renew, replace or repair property and that the decision would not affect safety;

The proprietary rights of owners in common property does not impose positive duties on the owners corporation that modify the statutory duties;

Section 62 resolutions leave very little room for the operation of the doctrine of fraud on the minority because Section 62 (3) contemplates a loss rights by a minority in relation to common property;

A breach of Section 62 by an owners corporation does not give rise to an action for damages for breach of statutory duty.

There’s an awful lot in that and there will be more.  For instance, will the rich and powerful no longer be able to skip CTTT adjudications by taking their cases to the Supreme Court on the grounds that it can award damages and the CTTT can’t? If the Supreme Court now also can’t award damages in these cases, then it’s back to the Tribunal for the heavy hitters.

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[Jimmy-T]

Pater C made a valiant effort to post some interactive doo-dads but they didn’t work and, given that the website was teetering on the brink of implosion last week, I have reluctantly removed them.

I’m hoping Peter can post links rather than flash animations but meanwhile, here is the original link to the Smart Blocks website.

 

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[Jimmy-T]

@Austman said:

Sorry JimmyT, but I think you advice is wrong here. OC’s should be aiming for reasonable solutions re the NBN introduction.  They are out there and being implemented in other countries!

Ehhhhh … where did I say any different? I agree with you.

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[Jimmy-T]

This is a tough one – and even tougher to prove, I would imagine.

We recall your prvious posts and this is a long-standing feud (I think) over dumb waiters, lifts and electricat power boards.

I reckon you have two options; you could take action at the CTTT on the grounds of noise and behaviour on common property or you could go for an apprehended violence order at court.

I don’t know your chances of success with either so perhaps your best bet is to send a note saying: “Look, you hate me, I hate you, forget about revenge for all the things I haven’t let you do and let me sell this place so we need never see each other again.” 

That isn’t only the cheapest option, it might actually work.

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[Jimmy-T]

Whale’s response, below, is pretty comprehensive but I just wanted to add a yarn I heard recently about a smartypants chairman who got his handyman mate to put extra locks on fire doors (!?!?).  When a resident who works for WorkCover noticed telltale blue dust  on the floor, the building was evacuated while asbestos clean-up workers – gas masks and safety suits, the works –  tried to make the building safe.

That was told to me by my good friend Chris Mo’ane of Integrated Consulting. If you are looking for professional advice on how to identify and deal with asbestos in your building, you need look no further than our old friends Integrated on http://www.ibc.net.au 

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