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Apologies for any confusion you may feel or have felt – there are differing opinions on these things but you could do a lot worse than just follow Whale’s advice in its entirety.
The whole business of laissez-faire and non-bureauicratic responses is all very well … until someone pulls out the rule book, the by-laws and strata law and starts demanding payment from the Owners Corp to repair work that shouldn’t have been done in the first place (THIS posting, just in today, is a perfect example of why you would want to avoid that).
The smart thing to do now, apart from this specific issue, would be to have an audit of all work done ‘on the nod’ and get formal agreements in place as soon as possible The people who turned a window into a door should have had a by-law in place that ensures they are responsible for repairs and maintenance. Their subsequent request to annex the land outside for a garden should come with an offer of payment based on any enhancement that makes to the value of their property (which would be considerable).
If the strata manager isn’t up to the task, then a strata lawyer will draw up the required paperwork at the garden annexing lot owner’s expense. Anything less should be rejected.
Bad practice in the past is not an acceptable reason for lax procedure now. We are all learning about strata as we go and everyone has to accept that we have to do the right thing, even if we’ve done the wrong thing in the past.
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@paula said:
An owner has installed Ducted air conditioning without approval, since then a noise issue has arisen and a repair cost has come up that strata has had to pay for as the air con is on common property. what should we do next?Well, first of all, if the lot owner has installed air-con on common property without permission and they are still in possession of the property, the Owners Corp would be mad to pay to fix it. Tell the owner they need to fix all the work themselves or remove the air-con.
If the unit has been sold to a subsequent owner, your choice is to either fix the problem that you have inherited or tell the new owner that you plan to restore the common property to its original state. That should get their attention. Either way, the Owner’s Corp has the whip hand here and your other owners should not be subsidising a ‘land grab’ by one owner
Is a letter requesting the removal and stating the two by law breaches considered a Notice to comply?
A Notice To Comply has to be sent in a specific form which you will find HERE. Having said that, I would reckon better option is to pursue an order at the CTTT. Have a look here to see the difference between the two options and how to pursue the Order (with links to the required forms).
what happens if we go to mediation, do they have an opportunity to reapply for the air con approval?
Meditation is an opportunity to resolve the issue amicably and is a prerequisite of any further action at the CTTT. It can’t be avoided in a case like this and if you went to mediation, you would ask at the very least for the person who installed or now owns the air-con to agree to repair the the air con themselves or draw up at their own expense a special resolution by-law allowing them to have the air-con and agreeing to maintain and repair it in perpetuity.
That is a reasonable request and should be your absolute line in the sand.
The air-con installer can’t apply for permission at the mediation. In fact, neither party has to agree to anything. However it is an opportunity for you to tell them that permission will be granted under certain reasonable circumstances – and those are that they pay for a special resolution by-law that you agree to (you might even agree that the Owners Corp chooses the lawyer). That by-law will require them to deal with any problems resulting from the installation of the air-con.
You can also make the point that if they refuse you will be pursuing an order at the CTTT for the air-con to be removed at the lot owner’s expense.
Is a special by law recommended?
Absolutely. Anything less than a special resolution by-law that ties the owner to maintain and repair equipment they have installed on common property is a recipe for disaster (regardless of other opinions expressed elsewhere on these pages). This is not as harsh as it may seem. The person who wants to use common property for their own purposes should pay all costs, including the drafting of the by-law since they are the only ones benefitting from this.
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I think the problem here is that the Landlord is more concerned about keeping the lawyer neighbours happy than looking after her tenant. That may be understandable in the long run but they have signed a legal contract and they have an obligation to both parties – the tenant and other owners – and should be seeking compromise rather than adding fuel to the fire.
The landlord has the ability to give approval at a general meeting – since she has the majority vote – and you could argue that the permission was given when she signed the lease.
However, she has chosen not to exercise that power and has instead chosen to renege on her legal contract with the tenant and is even going along with a plan to change the bylaws, which she could easily block.
The other owner can take action at Fair Trading and the CTTT for the implementation of a by-law, as any resident – owner or tenant – is entitled to do. The by-law requires that EC permission be given and they would ald argue that hasn’t happened. However, the question of whether or not that permission was withheld unreasonably would come up and it’s quite clear that giving permission in a lease and then withholding it at the EC level is unreasonable by any standards.
So Keb is on solid ground if the matter goes to the CTTT but she probably needs to get Fair Trading involved right away (cal 13 32 20) and it would be worth looking at the Tenants Union website too, specifically this factsheet.
The website does have a number of template letters for sending to landlords during disputes – unfortunately none of them come under the category “your mistake – leave me alone”.
However there is a sample letter on this page under “Peace, Comfort and Privacy Breach” which might be amended to suit these circumstances.
Finally, I would move the dog in and let the landlord and lawyer run their case at the CTTT to have it removed, if they want. Ignore Notices to Comply – on the grounds that the majority of the Owners Corp has given permission – and let them, if they want to push it, take it to the CTTT where I would guess they would be laughed out of court.
At the same time, I would be looking for a nice new apartment in a genuinely pet friendly building because, given the state of play at the moment, Keb will not be getting the lease renewed at the end of its term.
Oh, and if Keb found somewhere suitable before the lease ran out, she could use this whole saga as a reason for leaving early. The landlord has breached the terms of the lease – Keb is free to go when she wants.
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@Kangaroo said:
OK, I’ve had a few whiskies, so let’s get started.JT …
“There was no ban on pets”, but there was a ban on pets “arriving” without written permission (in the form of a By-Law).
The by-law on pets that was in place says that pets are not allowed except with with the permission of the Owners Corp which must not be unreasonably refused. It doesn’t say ‘prior permission’ and Keb had permission of the landlord so she would have reasonably assumed she was on safe ground.
Permission has to come from the OC, not the landlord, not the SM, not the EC (unless the OC choose not to override their decision).
The EC IS the Owners Corp in decisions such as this although, you are right, their decisions can be countermanded by a general meeting of the Owners Corp. This is what the Strata Act says:
21 Executive committee’s decisions to be decisions of owners corporation
(1) A decision of an executive committee is taken to be the decision of the owners corporation, subject to subsection (4).
It does, however, go on to list the exceptions to this rule, of which this is not one.
The OC can take you to the CTTT for breaching a By-Law, either the old one requring permission, or the new one banning pets altogether.
Or you could take the OC to the CTTT, on the grounds of “unreasonable” refusal, or that they changed the By-Laws during your tenancy.
My advice would be to tough it out – let them make all the running and defy them to provide evidence that the dog is a nuisance and this is anything less than unreasonable persecution because they didn’t read their own by-laws properly.
And if they give you any trouble, threaten them with an AVO for harrassment – doesn’t look too good on a lawyer’s CV.
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The simple answer is yes although the mechanics are a little more complicated. The person listed on the Strata Roll can nominate themselves or they can nominate another person, provided they aren’t standing for election themselves. However, the spouse or any other person who doesn’t even need to be an owner can stand for election provided another owner nominates them. This is how, for instance, strata managers can be elected to the EC.
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CC Baxter said
Ah, “unreasonably” and “occasionally”. Words that are music to lawyers’ wallets.
True, but they don’t say ka-ching to m’learned friends quite as loudly as “It’s a matter of principle …”
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The only circumstances under which this would be considered unfair would be if the owners didn’t get an exclusive use by-law that made them and whoever buys their properties in the future responsible for the upkeep on the aircon units and the areas in which they are placed. You could argue that by using them in this way, the owners have increased the value of their phones but it really would be a nominal difference (there is a legally established formula which is the difference between the improvement in value of the unit, minus the costs of installation – including the cost of drawing up the by-law).
As long as none of this costs the owners corp in any way, and there is adequate compensation (if at all) then there’s nothing wrong with this.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.
Yes … but …
There was no ban on pets in this case until one arrived and the landlord had given her approval for the dog.
How about people who take on positions of authority in buildings and don’t bother to readtheir own by-laws, let alone undertake ‘basic training’ through the SCA’s online EC members course?
For every owner and tenant who dumps their “self-inflicted” problems on ECs, there’s an EC member who just wants to protect their own interests without having any regard to the responsibilities they have undertaken.
(Point taken on the “pinned” posts, though – I shall unpin whenever I can remember where they are)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.
@newlsie said:
Wow, does anyone know if that is the case in NSW. Can an EC take legal action without asking the owners?Generally speaking, no, except as allowed by the Regulations which state that you don’t need general meeting approval for legal costs that are less than $1000 multiplied by the number of units, or $12,500, whichever is the lesser.
This allows ECs, for instance, to take legal action against levies defaulters. But some cases are so complicated that lawyers have complained that they can’t even prepare a comprehensive quote for consideration at a general meeting because the costs are so restrictive.
These restrictions were brought in at the behest of developers who were annoyed at ECs (over which they had no control) launching legal action over defects.
This is what the Act says.
80D Legal action to be approved by general meeting
(1) An owners corporation or executive committee of an owners corporation must not seek legal advice or the provision of any other legal services, or initiate legal action, for which any payment may be required unless a resolution is passed at a general meeting of the owners corporation approving the seeking of the advice or services or the taking of that action.
(2) The regulations may make provision for or with respect to exempting any type of legal service or legal action from the operation of this section.
The current regulations referred to in paragraph 2 allow for small scale legal actions, as described above.
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I couldn’t agree with Whale more. There are so many loopholes in Strata law, and the CTTT can be so inconsistent in its rulings that you really can’t be too careful. Imagine that your gentleman’s agreement with the existing owner isn’t honoured by the next person who takes possession of the unit. Suddenly the Owners Corp could be faced with keeping up a garden that is to all intents and purposes a private facility, or paying to restore the area to its previous condition.
It may be bureaucratic but it isn’t excessively so -it’s just the system and, bearing in mind that we live in a ‘me first’ world, it simply makes common sense to dot all the Is and cross all the TsIf 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.
I f I were in your shoes I’d be telling the EC to get on with it or you will be applying to the CTTT for the staturotry appointment of a strata manager to take over the running of the building. That means no EC and no Owners Corp plus higher SM fees until such time as the strata plan can manage itself again
The current SM may even volunteer to do the job if they feel they are being prevented from doing the right thing by the EC.
This strata plan seems like it is in breach of three of the four conditions (below), each of which can be grounds for a statutory appointment on its own. I would send the EC a strongly worded letter, signed by as many supporters as you can muster, pointing out the danger of being put into statutory management if they don’t get on and do the work.Here are the circumstances under which a strata manager can be appointed by the CTTT:
Order may be made on application in certain circumstances
An Adjudicator may make an order under this section (162), on application, but only if satisfied that:(a) the management structure of a strata scheme the subject of an application under this Chapter is not functioning or is not functioning satisfactorily, or
(b) an owners corporation has failed to comply with a requirement imposed on the owners corporation by an order made under this Act, or
(c) an owners corporation has failed to perform one or more of its duties, or
(d) an owners corporation owes a judgment debt.
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Mattb is right. Clearly Adeze should have started talking to the strata manager and the executive committee as soon as problems started to appear. Anyone else in this situation would be well advised to do that now.
There is an excellent government website called Moneysmart that offers excellent advice on this kind of problem.
Beware however, of debt consolidation, high-interest lenders masquerading as ‘financial counsellors’. As the Moneysmart website explains that can be a short-term fix that can lead to long term problems.
Meanwhile Adeze should also contact Fair Trading on 13 32 20 and ask for advice and help in dealing with this latest bill.
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As much as I like the idea of mass participation in the meeting, I can’t see how this can be made legal by the passing of a by-law. There are clearly defined processes for EC meetings and general meetings and different standards of validity for the decisions they make, not least the requirements of notice periods, etc. The law dictates the maximum number of members of an EC at nine with clear rules as described in previous posts, for participation of non-members.
This is all fine … until it isn’t. For instance, what happens when someone who is in a minority on the EC on an issue stacks the meeting with their supporters? The losing EC members would then, quite rightly, say the vote had no legal validity and you’d all be in it up to your eyeballs
If you want to keep the community involved, perhaps you can adopt “Standing Orders” that allow the EC members to take a poll of the owners present before the EC members only vote on the issue.
Or you can make your EC meetings General Meetings (although that restricts all decisions to items that are on the agenda).
But by-laws of an Owners Corp can’t supersede superior laws – in this case the strata Act itself – and if you go ahead with these mass vote all your decisions could be subject to legal challenges by any owner who doesn’t like the outcomes.
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@kiwipaul said:
The only doubt I have is that I believe the meeting has to vote to accept proxies before the proxies can be exercised. But I have heard of Chairmen collecting proxies to dominate a meeting and bulldoze motion through.
I don’t think you need prior approval of proxies at General Meetings – just at executive committee meetings – otherwise 90 percent of of AGMs wouldn’t happen.
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Not trying to be funny, honest, but somebody needs to talk me through this.
The situation is that you have four units and one owner owns two of them, which amounts to 58 percent of the Unit Entitlements.
The Act says a quorum is created if:
a) at least one-quarter of the number of persons entitled to vote … is present, either personally or by duly appointed proxy, or
(b) at least one-quarter of the aggregate unit entitlement of the strata scheme is represented by the persons who are present … either personally or by duly appointed proxy.
And, yes, it does say that if the quorum would be less than two, as calculated as a quarter of the owners, then it would be two “persons”. Does that mean two individuals? Every other definition talks about the figures represented by persons who are present , including by proxy.
If there is a definitive ruling that “person” means individual then I will concede the point. But I know that many AGMs depend on proxies – and surely the owner of the two lots would be considered, if not as two people, as a person and a proxy.
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