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I’d say your SM is right. This is what the Act says:
12 Quorum
(1) A motion submitted at a general meeting of an owners corporation must not be considered, and an election must not be held, unless there is a quorum present to consider and vote on the motion or on the election.
(2) There is a quorum for considering and voting on such a motion or at such an election only if:
(a) at least one-quarter of the number of persons entitled to vote on the motion or at the election 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 and entitled to vote on the motion or at the election, either personally or by duly appointed proxy.
(3) However, if there is more than one owner in the strata scheme and the quorum calculated in accordance with subclause (2) is less than 2 persons the quorum is 2 persons entitled to vote on the motion or at the election.
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Your EC isn’t in breach of the CTTT Order until such times as the deadline has passed but you could send a letter to the Strata Manager, to be passed on to all the EC members warning them that time is running out and advising them that they can have an electronic meeting – by email – to approve the work.
Failure to do so before the deadline will lead to action against them individually and collectively as members of the EC, under Section 202 of the Act, for failure to abide by the ruling. This can lead to fines of up to $5500 and costs can be awarded in these instances – the CTTT really doesn’t like people ignoro=ing their orders.
You will also use this breach of the order as a trigger to have the EC replaced by the statutory appointment of a strata manager, at which point the Owners Corporation will cede all it’s powers to the appointed SM for the period decided by the Tribunal.
There’s no point in taking the Owners Corp as a body to the CTTT since you end up paying part of any fines. Take action against the individuals if you want to get things moving.
You can download a copy of the form HERE and the relevant section of the Act is below. By the way, when I started reading about ‘stratum’ I realised that you have reached the point that advice from a strata lawyer would be very beneficial. However, if I am reading the part about costs correctly, if you do employ a lawyer to get the backsliding EC members fined, they may also be up for the fees. Ask a lawyer (click on Makinson & d’Apice’s ad on the Home page, if you don’t know who to call.)
202Civil penalties for contravention of orders under this Chapter
(1) The Tribunal may, by order, require a person to pay a pecuniary penalty of an amount of up to 50 penalty units for contravention of an order under this Chapter (the original order).
(2) An application for an order under subsection (1) may be made:
(a) in any case, by the applicant for the original order, or
(b) if the original order relates to a parcel that is not a stratum parcel, by the owners corporation for the parcel, or
(c) if the order relates to a stratum parcel, by each owners corporation for a stratum parcel including part of the building, the lessor of the strata scheme (in the case of a leasehold strata scheme) or by any person in whom is vested an estate in fee simple (or in the case of a leasehold strata scheme, a leasehold estate) in a part of the building that is not included in a stratum parcel, or
(d) in the case of an order that gives effect to any agreement or arrangement arising out of a mediation session, by either party to the mediation.
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ACA are going to love doorstepping this guy at his Real Estate office.
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How considerate of this scumbag father to dump his delinquent son on other people. There is no way you should have to put up with this behaviour and the good news is that you can stop it.
First thing is to forget Notices To Comply – you want multiple orders from the CTTT that the son and his friends have to abide by the by-laws. Failure to do that will result in fines of up to $5500 a pop – see how deep daddy’s pockets are then.
Then you want to go to your district court to get a Noise Abatement Order. This has nothing to do with strata law. It is a Court order and failure to abide by it means sonny-boy can be arrested for committing a criminal offence – breaching a court order.
Interestingly, you can also take a Noise Abatement Order out against the father as there has been a precedent that, as owner of the premises and being in a position to stop the noise, he is responsible too.
So first of all gather all the evidence you can, including pictures, recordings, paperwork and properly witnessed statements from other neighbours. Then make applications both for CTTT orders and Noise Abatement orders.
For the explanation of how to get CTTT orders, go here and scroll down to CTTT ORDERS.
For information on how to get a Noise Abatement Order, go HERE and/or download THIS pamphlet.
Regarding the media – I assume by that you mean Today Tonight or A Current Affair. They would love a story like this but be aware that if you press that button, they will expect you and at least one of your neighbours to front up on camera to tell your story. If you aren’t up for that, I wouldn’t bother. If you are, let me know and I will unleash the hounds.
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@Kangaroo said:… you’re both missing two points:.1) Tenants don’t usually read the s44 of the Act, so are unaware of their obligation.
2) If the standard lease were modified to include a By-Law compliance clause (as in QLD), then the OC would have an extra avenue to ensure compliance – a By-Law breach would be a Breach of Lease, which could (eventually) lead to eviction.
The ‘point’ (of the question raised) is that the law clearly requires tenants to abide by by-laws. This is unquestionable and is not debatable (unless you are a CTTT adjudicator).
Your point 1 – that tenants don’t read the Act – is speculative (albeit with a high probability of of accuracy).
I think the lease should be modified to TELL tenants that they have to abide by by-laws (as I will be saying in my Flat Chat column next week) but the fact that it doesn’t shouldn’t excuse them from being pursued for breaches of the by-law.
But consider this – if you send a tenant or an owner a Notice To Comply, it must include a reference to the by-law they are alleged to have breached. Only someone who was off their meds (or a CTTT adjudicator) would excuse someone for a subsequent breach on the basis that they didn’t known there was a by-law.
And, by the way, tenants do get evicted for consistently breaching by-laws, whether they have read them or not.
However, being a belt and braces kind of guy, I agree there should be a line in the standard lease saying tenants must abide by the strata scheme’s by-laws or they will be in breach of their tenancy agreement and could face eviction.
It doesn’t change anything except put the onus firmly on the tenants to find out what the by-laws are.
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IN NSW the Act clearly states the owners and lessees – and even occupiers – have to comply with the by-laws.
In fact, it goes so far as to say that any lessee or occupier has to abide by the by-laws as if they had signed and sealed them all personally.
44 Who is required to comply with the by-laws?
(1) The by-laws for a strata scheme bind the owners corporation and the owners and any mortgagee or covenant chargee in possession (whether in person or not), or lessee or occupier, of a lot to the same extent as if the by-laws:
(a) had been signed and sealed by the owners corporation and each owner and each such mortgagee, covenant chargee, lessee and occupier, and
(b) contained mutual covenants to observe and perform all the provisions of the by-laws.
(2) There is an implied covenant by the lessee in a lease of a lot or common property to comply with the by-laws for the strata scheme.
(3) In this section, lessee means, in relation to a lot in a strata leasehold scheme, a sublessee of the lot.
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Hi Meg
I don’t think there is any requirement in NSW for the strata manager or EC to even respond to your letters, let alone send you a copy of letters they send to other residents (it’s different in Victoria).
If I were in your shoes, I would send a letter to the strata manager asking them to issue a Notice To Comply, citing the by-law that has been breached and to send a copy to you at the same time.
If they failed to do that, I would tell them I was taking the Owners Corporation to the CTTT to get an order against them, forcing them to take action. That might get things moving.
Chance are, however, they could have sent a letter and just not bothered to tell you. So maybe the best initial approach is to ask them if you can get a copy of the letter that they sent.
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@Austman said:
On the issue of the need for a Special By-Law (SBL) where works are proposed that change the common property, doesn’t a special resolution suffice in circumstances where the Owners Corporation is prepared to consider works of the same types individually as opposed to giving a blanket consent to those via a SBL?
I was referring to a by-law that isn’t so much as a blanket consent as a condition that applies to all work, whether it’s approved or not. It’s a safety net provision. You are supposed to let the EC know you are planning to change your apartment and you are supposed to get proper permissions to alter common property, including (sensibly) provision for ongoing repair and maintenance. However, there are people who just go ahead and change stuff without letting anyone know so a blanket by-law will draw them (or subsequent purchasers) into the net if anything goes wrong. It also puts an added onus on purchasers of renovated units to make sure renovations have been done properly with the full knowledge of the Owners Corp.
Like Austman, I don’t think blanket approvals are a good idea but that wasn’t the intent of what I wrote.
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If you are doing anything to change common property – such as pipes in the wall and bathroom tiles – you need a special resolution by-law which should include clauses that make you responsible for the repair and maintenance of any parts of the common property that you alter or replace.
Some buildings have a blanket by-law in place that makes any owner responsible for changes made to common property even if they don’t tell the Owners Corp about them – this gets round the problem of people making changes, not telling the Owners Corp and then selling their unit at which point the owners Corp (not the new owner) inherits responsibility for the alterations.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.
It’s an interesting point that DaveB makes. The Strata Act says Owners Corps must maintain and repair common property unless they decide not to by special resolution (75 percent of those voting at a general meeting). Even then, there are restrictions (see Section 62, below) and the decision can be overturned at the CTTT.
Given the possible impact on property values and accessibility – and it might have been a provision demanded in the Development Approval – I’d look at getting a strata loan from someone like our sponsors Lannocks, if a special levy is going to cause conniptions in the block.
Or lock it off for safety reasons, awaiting repairs, and see how many people complain.
62 What are the duties of an owners corporation to maintain and repair property?
(1) 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.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
(3) This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:
(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.
Note. The decision of an owners corporation under subsection (3) may be reviewed by an Adjudicator (see section 138).
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@scotlandx said:
In our building the landlord always does it because they are the owner, but perhaps it might be easier here if the tenant does.Actually, I can now see how that could work, since the landlord can only seek permission for a pet that is going to live there under the terms of the by-laws. They could even reasonably ask for blanket approval for their unit under those terms. In some schemes (older ones, especially), ECs and strata managers refuse to have anything to do with the tenants and only deal with owners (even though tenants are now ‘interested parties’ under strata law).
However, I also know of plenty of landlords who couldn’t be bothered to apply for permission for a pet on their tenants’ behalf.
CORRECTION:
Re, the clause being in the lease, I had been misreading the original post and have edited my comments to avoid confusion for anyone coming to this discussion late. Apologies for any confusion I may have caused. However I’ll leave my comments about verbal agreements in the other response as they have a general application. The landlord can’t change the terms of the lease without the tenant’s approval or until the lease is renewed (or not).
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Have a look at this document HERE – it explains the kind of noise that is unacceptable in residential premises.
Now, set that aside and, working on the assumption that the noise is coming from somewhere in the strata scheme, your EC can’t simply decide to put this in the ‘too hard’ basket. They have a statutory duty to maintain common property and to uphold their by-laws.
What you want to do now is apply for mediation, preparatory to taking an order against the Owners Corp, demanding that they investigate and take action to resolve the issue.
Your by-laws will almost certainly have a clause entitling you to the peaceful enjoyment of your lot. You can apply to the CTTT to issue an order compelling the Owners Corp to take action on this.
I have reproduced the relevant clause below. You can find out how to get an order at the CTTT here – click on the link and scroll down to “CTTT ORDERS”.
By the way, mediation is a mandatory step in this process but you might be able to get agreement from your EC to do the right thing at that stage and save everyone a lot of hassle while still ending up with a positive result.
138 General power of Adjudicator to make orders to settle disputes or rectify complaints
(1) An Adjudicator may make an order to settle a dispute or complaint about:
(a) an exercise of, or a failure to exercise, a function conferred or imposed by or under this Act or the by-laws in relation to a strata scheme, or
(b) the operation, administration or management of a strata scheme under this Act.
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Let’s just lay out a few facts, to answer the question asked in the original posting, the lease does NOT over-ride by-laws – if anything it’s the other way round. Landlords can’t just make up their own rules that allow their tenants to do things other residents can’t.
Once you have the permission of the landlord, you still have to get the permission of the Executive Committee and that has to be based on the by-laws that operate in that strata scheme (which may be different from other by-laws elsewhere).
If you have permission in writing or, at the very least, the rental agent admits that they did give you permission, then you are well placed.
The landlord has employed the rental agent to act on their behalf. If the agent has done something the landlord didn’t want, then that’s something they need to sort out between themselves – it has nothing to do with you.
Have a look at Page 9 of the standard residential tenancy – it has has a couple of clauses related to the keeping of animals and any specific conditions that apply. By the way, your landlord/agent was breaking the law by not providing you with a copy of the by-laws and could be fined for not doing so.
Most by-laws that allow pets, stipulate that tenants must have their landlord’s permission, first and foremost. Then the Executive Committee decides whether or not it will give permission for the pet.
If the by-law is basically the ‘can’t unreasonably refuse permission …’ model and you have the permission of the landlord or agent IN WRITING then you have a very strong case if the dog is well-behaved.
One owner’s complaint is not sufficient reason to make refusal ‘reasonable’ – even if they are lawyers. Some (but not all) lawyers who live in strata should be required to wear tee-shirts with “LAWYER” on the front, to save them having to say “listen, I’m a lawyer …” when they start bullying their neighbours. Most lawyers who aren’t strata specialists know diddly about the intricacies of strata law.
Also, residents and Owners Corps have legal protection against nuisance animals regardless of whether or not they have permission.
The strata Act clearly states animals can be ordered out of strata schemes even when they comply with the by-laws (see Section 151 below). For instance, a cat might be quiet, clean and never stray on to common property – but it’s very presence nearby might cause serious medical problems for someone who has an allergy. People take precedence over pets and medical conditions trump personal preferences.
I mention that clause in the Act because Executive Committees are often highly ignorant of their own by-laws, and even less informed about the protections they have under the strata Act. As a result, they tend to react – usually overreact – by jerk of knee.
All that said, I don’t think anybody needs to be threatening anyone else with court action if it can be avoided. This could be resolved by mediation at Fair Trading but it seems to me the first step is to get the landlord or their agent to concede that the dog was allowed (the length of stay is irrelevant unless you are assuming it will be a nuisance).
If you get permission in writing (or already have it), apply to the Executive Committee for their permission under your strata scheme’s by-laws. Someone has written here that it’s up to the landlord to make that application – I don’t think that is the case since it’s very hard for the landlord to stipulate the nature of the animal concerned.
You get the permission, then you apply to the EC. Your mistake with ‘m’learned friend’ next door may be that you hadn’t applied for permission from the EC before you introduced the dog.
If the landlord refuses to give permission, and you believe they have misled you, you can apply to Fair Trading for mediation and a possible CTTT order on those grounds – although it’s hard to prove if both the landlord and agent say permission wasn’t given and you have nothing in writing, or a witness who will testify to the fact.
Verbal agreements, especially in rentals schemes, are as the late, great Sam Goldwyn said, “not worth the paper they’re written on.”
151 Order relating to animal kept in accordance with by-laws
(1) An Adjudicator may make one of the following orders if the Adjudicator considers that an animal kept on a lot or the common property in accordance with the by-laws causes a nuisance or hazard to the owner or an occupier of another lot or unreasonably interferes with the use and enjoyment of another lot or of the common property:
(a) an order that the person keeping the animal cause the animal to be removed from the parcel within a specified time, and to be kept away from the parcel,
(b) an order that the person keeping the animal take, within a time specified in the order, such action so specified as, in the opinion of the Adjudicator, will terminate the nuisance, hazard or unreasonable interference.
(2) An application for an order under this section may be made only by an owners corporation, lessor of a leasehold strata scheme, strata managing agent, an owner, any person having an estate or interest in a lot or an occupier of a lot.
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The landlord can’t change their mind about omething tht’s in the lease – whther or not they gave the agent their approval. the agent is working on their behalf and you have to be able to trust what they say and do.
It seems you may have missed out a critical step in this process which is to apply for permission from the Executive Committee to have the dog there.
If they refuse unreasonably, what you can do next is apply to Fair Trading for mediation and, if the result isn’t satisfactory, take the case to the CTTT for a ruling (The CTTT won’t hear the case unless mediation has been attempted.)
You will find the process explained – with links to the required forms – HERE. Yours is option 2 – a CTTT order. Although you aren’t seeking a penalty, you do want a ruling on the EC’s interpretation of “unreasonable” and only the CTTT can give you that.
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KP – there is no strata manager. This appears to be a self-managed block.
However, most of these records should be kept so you are right in so far as their absence is proof of mismanagement.
Is the lawyer/accountant in cahoots with the majority owner? Maybe, like so many people in strata, he simply has no idea what’s going on.
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