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A new or amended by-law has to be registered at the Registrar General’s Office within two years of the vote being taken to make the change.
Until such times as the by-law has been registered, it has no legal standing.
The question of who should vacate what and when is not so clear cut. In simple terms, the EC could ask the owner concerned to vacate what is still common property until such times as the matter is resolved.
However, I would caution you that there is a common law principle called something like fraud against a minority which basically concerns a majority of owners having legitimately (under the law) chosen a course of action which discriminates against a minority.
An example would be 80 owners in a building of 100 units but only 80 car spaces, awarding themselves exclusive use of common car spaces, and let the other 20 owners go whistle without compensation of any kind.
Strata law allows for a 76 percent majority to pass a by-law but common law doesn’t allow such blatantly unfair behaviour.
So, in your case, the person who loses out on the storage could have a claim against the Owners Corp which could lead to the original and as-yet unregistered exclusive use by-laws being struck down. If the two excluded owners currently arguing over the one storage space get together, then you might have real trouble on your hands.
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Chak wrote:
If one person holds 10 proxies, does it mean a show of hand by him represent 10 + 1 (self) votes?
If you are in NSW and you are talking about a general meeting (rather than an executive committee meeting) the answer, sadly, is yes.
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@kiwipaul said:
Paul H this seems to be your solution, if members cannot make a meeting get them to vote by returning a voting slip.This makes sense, KP, except I suspect Paul H wants the others to come along and justify why they agreed to the timber flooring – and possibly be persuaded to change their minds.
I found a stray piece of information on the internet that says some strata laws somewhere have a rule that if an EC member misses two meetings in a row without giving prior warning to the EC, then they forfeit their seat.
Have been unable to discover where this is – sounds like a good rule to me: Step up or step away.
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Everywhere has their own quirky differences. In NSW, we do have the ability to specify on official proxy forms how proxy holders should vote at general meetings but that’s the exception, rather than the rule.
There is away that the NSW applicant could have won approval without a physical meeting having taken place and that’s if the executive committee had decided to vote in writing. But there would still have to have been an agenda sent out to owners or posted on the noticeboard 72 hours before the proposed meeting.
“Where a meeting is to be done in writing a notice and agenda must also be given to each executive committee member,” according to Fair Trading’s Strata Living booklet.
The committee can also vote on issues without formally holding a meeting in Queensland where a ‘flying minute’ is used, for instance, when urgent work needs to be approved in a hurry within the scheme.
According to THIS document, “decisions may be made in this manner if all committee members are given written notice of the motion and a majority of the voting members of the committee gives written agreement to the motion.
“The notice (or the ensuing committee member’s agreement) does not need to be in writing and can be given orally or by some other form of communication. Any motion voted on under these provisions must be confirmed at the next committee meeting.”
In Victoria, the committee can still hold a meeting if there is not quorum but any decisions made don’t take effect until they are confirmed at a subsequent meeting or by a ballot of Executive Committee members.
The Victorian Owners Corporation Act says a ballot can be conducted by “post or by telephone, facsimile, the Internet or other electronic communication.” There’s more information about committees in Victoria in THIS factsheet.
South Australian strata works under a whole different set of rules again, including that all committee members must be unit owners and that special resolutions at general meetings must be approved by two-thirds of all owners (rather than 75 percent of votes at the meeting, as in NSW). You’ll find out more about strata in South Australia HERE.
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It may not make much difference or it could be considerable but thicker or double glass in a bigger frame would be more expensive to maintain and repair. At the very least, without a by-law, the Owners Corps should have a say in the who is doing the installation and the materials they are using. It doesn’t sound like this owner is going to be a problem – but when the person he sells to, or the one after that demands expensive repairs or maintenance, whoever is running the EC then will wish there had been a bit more care taken with this agreement now. This about a letter of a greement and then a by-law for the future m(your next AGM, for instance) that says anyone who alters common property with or without Owners Corp permission will be liable for its repair and maintenance, as will any subsequent owners of the lot..
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@Rita C said:
The additional comment (which is incomplete) must be read in conjunction with the original question, at the bottom of the page.There is specific provision in the home warranty insurance policy for payment by the insurance company of the cost of alternative accommodation, removal and storage costs, BUT no specific provision in relation to consequential loss of rent, which will result if the tenants are required to vacate the unit or if they remain in occupation at a reduced rental
OK, I think that’s much clearer. There is nothing specific in strata law about this that I can see. I would say your best way forward is to make a claim in as friendly a way as possible that outlines your potential loss and see if the insurance company or the Owners Corp comes to the party. Regardless of some of the other comments here, I think they should and if they do, then all well and good.
If they don’t, you have to look at how much you are going to lose and talk to a lawyer about your chances of winning a claim for compensation in court
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Unless your strata plan or by-laws specifically mention shower screens as common property then they are just a fixture. However, the shower stall base or tiled floor may well be CP.
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@Paul H said:
Of the members who approved the request: One has said she will not attend, one is overseas, one is claiming that the EC has already decidedThat leaves two men standing and both of us oppose the request. It seems that the EC meeting will lapse again for lack of a quorum. What can I do?
Firstly, tell the strata manager to write to the floor applicant IMMEDIATELY telling them that they definitely do not have approval for the floor as a properly convened meeting of the EC has not been held. There should also be a polite warning not to proceed with the flooring as they may be required to replace it should approval not be forthcoming.
The letter should explain that the meeting has to have a quorum of owners and it must also allow non-EC members to attend so they can hear what is being discussed. This letter must be sent out as a matter of urgency and copied to all EC members.
You could also write to the owner concerned and urge them to ask their supporters to attend the meeting, so at least a proper decision can be taken.
If the other EC members refuse, you could call a general meeting and sack the wilfully non-attending EC members (you will need 75 percent of owners to support you but proxies will count towards your quorum so get harvesting). The argument I would use is that these three EC members have put the Owners Corp in a position that could be very costly in legal and other fees by going “off the reservation” and giving approval they weren’t entitled to give. Even worse, two of them are refusing to make things right by attending a meeting.
You don’t need to fill the vacancies immediately – you can do that as and when people put themselves up for election – and at the next AGM reduce the size of the EC to three (which is adequate for a building like yours)
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@kiwipaul said:
To the best of my knowledge postal voting is not accepted in NSW.True
Only Sec or SM can call official meeting and an agenda (with motions) must be supplied to everyone 3 days before the EC meeting.
Not true. This is what the Act says:
7 Executive committee meetings may be required to be convened
(1) The secretary of an owners corporation or, in the secretary’s absence, any member of the executive committee must convene a meeting of the executive committee if requested to do so by not less than one-third of the members of the executive committee, within the period of time, if any, specified in the request.
(2) If a member of the executive committee other than the secretary is requested to convene a meeting of the executive committee under this clause, the member may give, on behalf of the executive committee, the notice required to be given under clause 6.
Going around collecting signature on a bit of paper is meaningless.
True in terms of the EC having given approval – that can only be given by a properly convened and minuted meeting that other owners are allowed to attend. However, collecting signatures is how you request and convene a meeting as described above
Those not available to attend can return the Agenda suitably completed to record their votes at the meeting (a sort of postal vote) and increase the number considered attending (a proxy vote count as attending) for a quorum.
Never heard of returning a “marked-up” agenda as a form of voting. You could give that to your proxy at an EC meeting as a guide but it has no legal status. By the way, EC proxies are in person – assuming you are an EC member yourself, you have to nominate someone in your place or an EC member who will vote on your behalf. And before their proxy status is valid, they have to be accepted by a majority of the other EC members.
“Postal votes” are invalid and even nominations of proxies don’t count towards the quorum of an EC meeting – the meeting has to be quorate before proxies can be accepted.
That’s why Paul H is in this bind with non-attendees running the agenda.
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If the EC has met and made a decision, then it will be minuted. if they haven’t met, and there is therefor no minutes, then there is no decision. As Sam Goldwyn said, “A verbal contract isn’t worth the paper it’s written on.”
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There’s a lot you can do to correct the bad behaviour (through CTTT orders and fines) and you can even apply to have the EC and strata manager replaced. However, you won’t get compensation unless you are prepared to take the matter to the Supreme Court.
First things first, you want to get CTTT orders to prevent further breaches of by-laws. Go here and scroll down to the second section on CTTT orders where the process is explained.
If the building is as badly run as you say – and you have evidence – you can apply to have a statutory appointment of a strata manager to replace both the EC (and Owners Corp) and the current manager. But before you can apply you have to find a new strata manager to take on the role. They will explain the process to you.
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Firstly. the costs of recovering the debt – including the legal fees – are all payable by the non-paying owner so no need to worry about that.
The next step, if it hasn’t already happened, would be to place a caveat on the title of the unit so that if the owner sells, you get your money before he gets his.
I’m not sure if pursuing for bankruptcy is a good idea or not. Your legal advisers might tell you.
If your owners Corps is suffering financially as a result of this non-payment and you need the funds now, consider taking a strata loan out – the interest on that would be covered more or less by the penalty interest chargeable on the unpaid levies.
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I’ve written a column on this, covering the various rules and regs for each state – needless to say they are all different. Have a look HERE
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@paula said:
Is Noise considered a breach of by law? Is one person complaining enough for it to be a breach? Can you send a Notice to Comply to the offender for this breach? If they do not comply is the next step to take it to tribunal?First of all you need to look at your by-laws – there can’t be a breach if there isn’t a by-law in the first place. That said, most buildings have a by-law that entitles owners to the “peaceful enjoyment of their lot”. With that in mind, excessive noise is a breach – what is excessive can be the volume, the frequency, the duration or combinations thereof.
The EC (or the strata manager, if they have delegated powers) issues Notices To Comply in response to a complaint from a resident (owner or tenant).
The NTC is a final warning, not a fine. If the miscreant does it again, the EC or strata manager should apply to have a fine imposed at the CTTT – they don’t need to undertake mediation to do this.
If the EC or strata manager doesn’t do it, individual owners or tenants can apply to Fair Trading for mediation, in the first instance, leading to an order at the CTTT. The CTTT Order process is longer and more cumbersome but the fines are ten times higher if the miscreant breaches the order.
This is all explained HERE.
If you aren’t getting anywhere with your owners corp, Fair Trading or the CTTT you can apply to your district court for a Noise Abatement order – Details HERE where there is a link to a PDF leaflet that you can download.
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