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LP, now you’ve got us all intrigued.Was it curtains for the bird … or the girlfriend? We need more!
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kiwipaul said
I’ve got to disagree with you here Jimmy the paint and skirting boards are part of the fixtures and fitting and so they are Strata’s insurance responsibility, NOT the contents policy. The carpets and curtain are contents, and so would be covered by the contents policy.
I don’t actually see how you are disagreeing with me but, in any case, what i said has nothing to do with insurance policies which differ from insurer to insurer, strata scheme to strata scheme and owner to owner. It’s about liability.
If something I own causes a problem for something you own, I am liable. If I am insured for liability, then that’s fine. If I’m not, then that’s tough on me – I still have to pay.
If the OC is insured for this liability then that’s fine but even if they’re not ured for it, they are still liable.
It’s often easier to claim against your own insurance than go through the rigmarole of trying to get a recalcitrant Executive Committee or strata manager to claim against theirs but that’s a commercial decision. It doesn’t change liability.
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While I mostly agree with Mattb’s reply, I’m going to take issue with item two. I know that the “Who’s responsible for what …” Memorandum states (bizarrely, if you ask me) that the OC is responsible for repairs to personal property required when it has been damaged in the course of repairing common property, but the OC is not required to repair damage to personal property (like paint and skirting boards) caused by the failure of common property in the first instance.
I have said many times that I reckon this is nonsense and a proper court of law (rather than the CTTT) would find that damage caused by a failure of common property was the liability of the OC and not the individual owner. That said, if you were to take this to a CTTT tribunal, they would sneak a look at the Memorandum and probably decide in favour of the OC.
It may only amount to a few dollars here or there but if your insurance didn’t kick in or you weren’t insured, I’d raise a small claims case at your District Court, rather than going through the CTTT’s extremely unpredictable processes.
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Beverley Hoskinson-Greene of our legal sponsors Makinson & d’Apice has provided us with a definitive response. All I can say is, I thought strata was complicated! Thanks, Bev.
The members of the Community Association are:
- Subsidiary bodies – which includes precinct schemes, neighbourhood schemes and strata schemes; and
- Owners of community development lots (ie single lots that have not been subdivided into anything else).
In the case of Seven Seas’ Community Association, there are 5 neighbourhood associations (neighbourhood schemes), each of which is a subsidiary body. Each of the neighbourhood associations is a member of the community association. That means that the member of the community association is the neighbourhood association itself, not the owners of lots in the neighbourhood association.
When the community association holds its meeting (Special General Meeting – all meetings other than an Annual General Meeting are called Special General Meetings) to approve the grant of the easement over community property, each neighbourhood association must cast its votes by proxy. The proxy form may specify how the proxy is to vote on a particular matter and, if it does so, the proxy must vote in that way otherwise the vote is invalid.
There are provisions in the Community Land Management Act for separate meetings of neighbourhood associations and precinct associations, but there is no requirement that a unanimous resolution of a community association must first be passed by special or unanimous resolution of a neighbourhood or precinct association.
So the unanimous resolution by the community association to grant an easement over part of its community property requires the passing of a resolution where no vote is cast against that resolution by any of its members. This means that if one or more of the members abstain from voting and the rest vote in favour, the resolution will be passed as a unanimous resolution. It also means that if one member votes against it, the resolution will fail.
One further point to note is that a community association can only grant an easement over community property; it can’t grant an easement over land that is within a neighbourhood or precinct association and is neighbourhood or precinct property.
I would take that to mean that a Neighbourhood Association’s lot owners could vote 3-2 or 4-1 in favour of a proposal and when the NA then voted at the Community level, it would still be considered a solid yes vote in terms of whether or not the vote was unanimous. In other words, one owner can’t prevent a unanimous vote but one Neighbourhood Association can.
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There are no proxies at EC meetings for non-EC members – i.e. an EC member can’t say they got X number of proxies at the general meeting so they have a bigger vote on the EC.
However, absent EC members can ask an attending EC member to act as their proxy. Or they can nominate another person to attend on their behalf, with full voting rights.
In both cases, the proxies must be approved by the EC members in attendance and they can’t be counted towards the 50 percent attendance required to create a quorum.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.
Only if they are prepared to pay for it themselves when everyone else says ‘nothing to do with us’. Nobody on an Executive Committee has Executive Powers – this includes the Chairman and the Secretary. The Strata manager maywever,m have delegated powers that allows them to act on behalf of the EC (or the building as a whole) especially in cases of emergency.
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@Kangaroo said:
When smoke alarms became compulsory in existing buildings, the obligation was not loaded onto the OC. Owners were individually responsible. Why should window locks be any different?
There is one significant difference – windows are common property and therefore it’s easier to mandate for universal changes than telling individual owners to do it then have to check up on them. That’s one reason strata blocks have been fast-tracked on this while two and three storey houses have been left alone for the time being.
On the question of balconies, there may be legislation at some point to prevent planters being placed next to balustrades, making it easier for kids to climb up and fall over.
If you are interested, you can download the Fair Trading discussion document HERE.
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Also, just to have Kangaroo reaching for the Panadol again, some special resolutions (like Exclusive Use by-laws) require a 75 percent vote of those voting at a General meeting, while others, such as redistributing surplus funds to owners, require a unanimous vote.
One thing we do know for sure is that this area is way too complicated.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.
There is a requirement under the law (Section 46, below) for the landlord to provide tenants with an up-to-date copy of the by-laws under threat of a massive $100 fine.
How does one go about having this fine imposed when most of them don’t even comply with the law that says they have to inform the owners corporation when and to whom they have let their unit every time it is leased (See section 119, below).
I reckon it’s time a few buildings had a blitz on agents who aren’t following up with either of these. Just keep an eye on open inspections and then give it 14 days. If the new tenants haven’t been advised to the EC and they haven’t been given a set of by-laws, it’s time to call Fair Trading and get them on the case. By the way, I would chase the owners rather than the agents. The agents will just charge the owners and blame the EC. We want the owners to pay the fine, bill the agents then sack them.
46 How does a lessee get information about the by-laws?
(1) If a lot or common property in a freehold strata scheme is leased, the lessor must provide the lessee with a copy of the by-laws, and any strata management statement affecting the lot or common property, within the time and in the manner required by this section.
Maximum penalty: 1 penalty unit.
(2) If a lot or common property in a leasehold strata scheme is sublet, the sublessor must provide the sublessee with a copy of the by-laws, and any strata management statement affecting the lot or common property, within the time and in the manner required by this section.
Maximum penalty: 1 penalty unit.
(3) The copy of the by-laws or strata management statement must be provided to the lessee or sublessee within 7 days after the lessee or sublessee becomes entitled to possession of the lot or common property.
(3A) If a lot or common property in a freehold scheme is leased and the by-laws are amended, the lessor must provide the lessee with a further copy of the by-laws, within the time and in the manner required by this section.
Maximum penalty: 1 penalty unit.
(3B) If a lot or common property in a leasehold strata scheme is sublet and the by-laws are amended, the sublessor must provide the sublessee with a further copy of the by-laws, within the time and in the manner required by this section.
Maximum penalty: 1 penalty unit.
(3C) Any further copy of by-laws required to be provided under subsection (3A) or (3B) must be provided to the lessee or sublessee within 7 days after the amendment of the by-laws is recorded by the Registrar-General under section 48 (1) (b).
(4) The copy of the by-laws or strata management statement (including any further copy of by-laws that have been amended) must be:
(a) served personally on the lessee or sublessee, or
(b) if the lease or sublease relates to a lot—served on the lessee or sublessee in any manner allowed by this Act for service of a document on the occupier of a lot, or
(c) if the lease or sublease relates to a lot or common property that is fully enclosed by walls or other structures—left in a conspicuous position at the lot or on the common property.
(5) Subsections (1), (2), (3A) and (3B) do not apply if the strata scheme concerned is part of a community scheme or the lessee or sublessee is the owner of a lot in the strata scheme concerned.
119 Notice to be given to owners corporation of leases or subleases
(1) If a lot is leased, the lessor must give notice of the lease, in accordance with this section, to the owners corporation within 14 days after the commencement of the lease.
Maximum penalty: 5 penalty units.
(2) If a lot is subleased, the sublessor must give notice of the sublease, in accordance with this section, to the owners corporation within 14 days after the commencement of the sublease.
Maximum penalty: 5 penalty units.
(3) If a lease or sublease of a lot is assigned, the assignor must give notice of the assignment, in accordance with this section, to the owners corporation within 14 days after the execution of the assignment.
Maximum penalty: 5 penalty units.
(4) The notice must specify:
(a) the name of the lessee, sublessee or assignee, and
(b) the date of commencement or assignment of the lease or sublease, as the case requires, and
(c) the name of any agent acting for the owner in respect of the lease or sublease.
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I’m not sure of the validity of any claim you might have against the Owners Corp but the first thing would be for the tenant to make a claim againnt you and for you to then pass that on to the OC.
I think if the fire was due to some negligence by the OC, then you might have a claim. If it was just one of those things, the Owners Corp are no more culpable than you are.
But rather than an informal arrangement between you and the tenant, get them to make a claim against you at Fair Trading, then whatever the outcome of that is – and you could settle this at mediation – you have a legitimate figure to claim against the OC’s insurance. There is no guarantee, however, that they will pay anything, depending on their policy.
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They can give their proxies but only after a quorum has been established and the EC members actually present have then agreed to accept proxies.
For instance Chairman turns up with two proxy votes in pocket. Two non-cronies also turn up. Meeting is quorate. Chair then asks members present to accept proxies.
They don’t have to and since there is a clear intent to fill EC positions with “phantom” members to give the Chair all the power to do as he or she pleases, they really shouldn’t. It’s not illegal – just highly immoral and the majority of owners actually at the meeting shouldn’t go along with it.
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Why don’t you threaten to get an order at the CTTT for them to fulfill there statutory duty to maintain and repair (or replace) Common Property. It would be cheaper for them to put up a sign than fight this at the CTTT (and then have to put up a sign anyway).
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@Kangaroo said:
Actually, that’s what the diagram on p34 of Strata Living says.Why is it falling out of favour?
The reason that diagram is falling out of favour is also because it doesn’t tell you that to get from simple step 1 to simple step 2 there are special forms to be filled in, protocols to be observed and paperwork to provide. Anyone who rocks up to the CTTT with a Notice To Comply in one hand and the Fair Trading flow chart in the other, won’t get past the metal detectors.
Very funny post, by the way!
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I have just been informed that I have misled all my loyal readers about the Notice To Comply process. In fact, not only do you not need to go to mediation, you don’t need to go to the “paper” adjudication. So the process is:
- Resident breaches by-law
- EC meets or strata manager decides to issue Noticie To Comply
- Resident continues breaching by-law
- EC or Strata Manager apply for the imposition of a fine
- Application is heard at a Tribunal.
So why is this process – which is even simpler than I thought – falling out of favour with strata managers? Read what Whale said happened when tenants in his scheme said they hadn’t seen the by-laws.
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