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@Felix said:
When Jimmy says one would have to go to another court first to gain a favourable status, what does he mean?What I meant to say – and would have if spellcheck hadn’t led me up the garden path – was that if there is a claim of co-ownership on a property by someone who is not clearly a co-owner (such as anyone in an informal relationship with the owner of the lot) that has to be determined elsewhere before it can be considered for inclusion on the strata roll.
However the strata Act does allow for an “Interested Person” to run cases related to the management of a building at the CTTT. Included in the definitions of ‘Interested Person” is this:
interested person, in relation to a freehold strata scheme, means … an owner of a lot in, a person having an estate or interest in a lot in, or an occupier of a lot in, the strata scheme.
So I was wrong to say that people had to be on the strata roll to be able to run a case at the CTTT. If they are an occupier and, as a spouse, a co-owner by default if not actually registered on the strata roll, I would think they would be an “interested person” on two counts. Apologies for the bum steer.
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I don’t know if you can fill these positions without a meeting. This is what the Act says:
(2) When a vacancy occurs in the office of a member of an executive committee … the owners corporation must appoint a person eligible for election as a member to fill the vacancy. Any person so appointed holds office, subject to this clause, for the balance of his or her predecessor’s term of office.
Although the Act says the new members should be appointed by the Owners Corporation, this is usually taken to mean the EC acting in their capacity as the OC’s executive. Normally, this would mean that the EC would, at their next meeting, confirm appointments or elect someone by ballot.
So, if your EC refuses to meet or to call a general meeting, they are in contravention of the Act that says new members ‘must’ be appointed. I would pressure them to hold a meeting to confirm the new appointments or face action at the CTTT who could be asked to issue an order forcing the EC to meet.
Alternatively, you could garner the signatures to force an EGM. This might be safer, in case they try to elect their own nominees to consolidate their position.
Interestingly, they should not be making any more decisions without electing new members because, if the new members names have been forwarded to them, any meeting they have is required to consider nominees for election.
Forward the names to your strata manager and whoever is the secretary and remind them they are required to call a meeting at the earliest opportunity to consider the new members to fill the vacant seats, otherwise they are in contravention of the Act.
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There is no legal compulsion to hold EC meetings. However, if there are decisions to be made that haven’t previously been approved by the Owners Corp, the EC must meet, must provide an agenda at least 72 hours before a meeting and minutes with 14 (?) days after it.
The EC’s decisions are taken as the Owner’s Corp’s decisions but they have to hold a properly constituted meeting to make those decisions official. However, the EC can’t agree to spend monies that were decided not to be spent at the AGM, or to spend more than 10 percent over the budgetted figures that were agreed without a general meeting for approval.
However, the AGM can lift these restrictions on the EC for the upcoming year. The key factor is that the EC must convene a meeting to agree on new unplanned expenditure, so that owners can be kept aware of what is going on.
Rules for the running of ECs are contained in the Strata Act (Division 3) and in Schedule 3 (which is at the end of the Act)
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Any owner can arrange to view all documents, minutes and correspondence at the strata manager’s office for a small fee. If the Strata Manager claims this breaches privacy laws they are either lying or incompetent or both. Our good friend Suzie Broome, a strata lawyer with our sponsors Makinson & D’Apice ,recently told an OCN seminar that there is effectively no such thing as privay in strata matter. You could argue for things to remain commercial in confidence, when a business rival was also an owner, for instance, and legally restricted when an owner was taking action against the EC (or vice versa), but she said she doubted either argument would stand up in court.
All owners have equal rights under strata law and being a member of the EC does not impart any executive privileges to keep Owners Corporation business secret from owners.
If you want to scare these people, point out that their actions, in wilfully ignoring the law, may invalidate their EC insurance that protects them from the financial consequences of making bad decisions.
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There is only a vacancy on the EC if the owners at the last AGM agreed that the EC must have a certain number of members (this is an obligatory item on the agenda) and there were not enough nominations, or if one member resigned or their unit was sold.
If there are vacancies, all an owner has to do is nominate someone to take the vacancy – if there are more nominations than seats, then there is a ballot by EC members. Otherwise, valid nominees can just take the vacant seat.
If there are no vacancies and you want to change the EC, you need 25 percent of owners to sign a letter calling for an Extraordinary General Meeting and then put forward a motion to vacate all the seats on the EC and elect a new one. Obviously you wouldn’t do that unless you had people prepared to serve on the EC.
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It seems an eminently sensible way to approach – again, the initial personal approach depends on the type of scheme you are in and the personalities involved.
Similarly, the wording of the “advice note” could be critical – too harsh and it could get people’s back up, too conciliatory and it might seem like you aren’t all that bothered.
It’s certainly worth every EC putting an item on their agenda to discuss how they want to deal with complaints and alleged breaches of by-laws. It my be that different breached, and their severity, might require different approaches.
But this is what democracy is all about – we get to decide for ourselves.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.
@Bev29 said:
Thanks. I do find mixing the political with the personal a tricky juggling act. I think it is probably best to follow the rules and issue a warning note as a first step,I understand your desire to do the right thing but there’s nothing in “the rules” about warning notes. In fact, a Notice To Comply is a warning note: if you don’t comply with the by-laws the EC may apply to the CTTT to impose a fine. That’s a warning, not a fine.
Allowing the aggrieved owner to vent at an EC meeting on a motion to issue a Notice To Comply is a legitimate way of giving them an opportunity to express their irritation while testing the boundaries of what the owners find acceptable, even if there are clear breaches of by-laws.
Whale’s suggestion that the outcome of such a motion might be to issue a warning letter is also fine because that’s just correspondence and has no legal standing under strata law beyond that.
As discussed elsewhere in this forum, I am gradually coming to the view that the rigid enforcement of by-laws is not necessarily good for community building. Each community should be allowed to set its own boundaries that reflect the current community’s standards, not necessarily the letter of the by-law. And if by-laws become inappropriate or unworkable, then common sense would dictate that they should be changed eventually.
Communities should not be restricted by by-laws that only a few people like, that were drafted by different people at a different time dealing with a very different world. If there is an occasional (acceptable?) lapse, so be it. The “thin end of the wedge” theory doesn’t really hold since the CTTT is supposed to consider each case on its individual merits.
But, allowing for the evolution of community standards in this way, the by-laws should be reviewed every five years or so. Provided there is open and free discussion of issues, this is perfectly achievable and there are other avenues of complaint for those who feel aggrieved.
There is a discussion elsewhere on this forum about a scheme that is trying to interpret a “pets only with permission” by-law as a ban on pets. If that is the prevailing view of the community, then they really need to change that by-law.
By the way, I note my last point on the subject of flexibility in by-laws – the Christmas lights that are in clear breach of at least two by-laws – has not attracted any response from posters who were pro-rigid enforcement.
Is it just the Christmas spirit extending to my feeble thinking or have I actually won an argument (for once)?
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Basil
Merry Christmas to you too. You haven’t told us where you live so we’ll have to assume NSW.
It sounds like your lucky car park owners want to have their cake and eat it, whether it’s Christmas or not), by not wanting to pay for the car spaces but requiring the other owners to repair them.
First you need to check with the original strata plan to see if these car spaces are common property or part of their allocated private space. If they were given exclusive use as part of a special resolution, there may well be conditions that require them to maintain the space.
If not, the easiest way to resolve this is for a voluntary agreement that formalises the exclusive use and states that they accept ongoing responsibility for repairs (but not these ones) and that they pay compensation to the rest of the building – and I can already hear their response to this double whammy.
In that case, you are right to look at unit entitlements. If they are paying the same levies as similar units that don’t have car spaces, then there is an inequity that should and can be resolved by making an application to the CTTT.
To support that application, you will need a professional survey to show that there is a significant imbalance in the Unit Entitlements (ironically, the Parkers will be paying for part of that too).
If that failed, hmmm … the Owners Corp has a legal obligation to repapir common property and owners have a legal obligation to allow access for common property repairs and, you know what, I can see these remedial works taking an awful long time. What with builders being what they are … wandering off to other jobs … forgetting to bring the right equipment … jeez, it could take months to fix this and, you know what, you couldn’t let anyone near it until it was safe.
In fact, I’m thinking it might not be entirely safe now … I wonder how much it costs to get a big sign saying “Danger – No Parking” and a couple of metres of chain.
But seriously, the best thing you can do is to persuade these Parkers that things are about to change, whether they like it or not, and they can work with you to do it the easy and inexpensive way, or work against you and get the same result only costing them (and you) more money.
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If the free-range pet is in breach of your by-laws, the easiest option is to invite the irritated EC member to table a motion at your next EC meeting to issue a notice to comply. Your EC doesn’t have to agree – and you might want to speak against the motion or organise the votes beforehand – but at least you have ticked all the necessary boxes.
If the aggrieved EC member wants to take it further, then he or she can raise the issue themselves at Fair Trading which will cost them just this side of $80.
You could even come at it from a different angle and propose an amendment to your pets by-law at your next general meeting, allowing pets to be allowed to run free provided they have prior written permission from the EC, which can be withdrawn if they prove to be a nuisance.
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Robbiejuve could do a lot worse than include those conditions in his reply to the EC. He can promise that his cat won’t do any of those nasty things and say he is prepared to make that a condition of acceptance. It will all go to strengthen his case if it gets to the CTTT.
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@lumocolor said:
I suppose my key blocker remains: how can I be sure that others will agree that the noise is disturbing when the upstairs neighbour claims that no it is not disturbing?It’s the laws of physics (and acoustics) – there is no way your upstairs neighbour can tell how annoying the noise is a) because they can’t hear how much their noise transmits to you and b) they can’t tell what your threshold of tolerance is.
I was thinking the best way is to get a AAAC accredited consultant preparing a report saying the noise is likely to disturb…but I would need to get his permission I am assuming to do a test from upstairs to downstairs plus there is a 1% chance the report may declare that the noise is actually not disturbing…
If the upstairs neighbour refuses the noise test then that plays in your favour. If the acoustic engineer declares the noise ‘acceptable’ then you are going to have to rethink your approach and maybe insulate the ceiling by some other means than a false or dropped ceiling.
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A complaint can be raised by an owner, co-owner, tenant, director in a company that’s an owner and (I think) a mortgagee and a ‘convenant chargee’ (whatever that is).
If a wife*, lover, ex, bestie, parent, sibling or child isn’t on the Strata Roll, then they would have to establish their proprietorial status through another court first.
In NSW, even the co-owner who is named second on the roll has slightly less standing that the co-owner who is named first, so someone who isn’t named at all, either on the roll or contractually (like a tenant) has Buckley’s chance.
*I’ve actually corrected this in a more recent post (above) – a spouse who is also an occupant of the lot is probably considered an “Interested Person” under that Act and therefore has the right to take action related to the management of the strata scheme. But someone in an informal relationship and, especially, who is not an occupant of the scheme, would have to prove by some other means that they had a right to be heard – JT.
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Check your by-laws – you should find that your are entitled to the peaceful enjoyment of your lot.
You should take this complaint to yuour EC and/or strata manager asking them to issue a Notice To Comply which says that the gang upstairs should either modify their behaviour or replace the carpet on their floor (or both) or face fines and orders at the CTTT.
If they EC won’t do this (and sometimes they don’t) then you can take action at the CTTT yourself. In the meantime start gathering evidence (statements from neighbours, recordings etc) to support your case.
You don’t have to put up with any of this. It is NOT part of apartment living, as many like to say. Some selfish parents have dumped their noisy brat kids on you and you are entitled to say ‘enough!’
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@struggler said:
Have.a look at the pets in the city website. It has a lot of information about pets in strata. Also, the law society website has a section about pets in strata. If you re friendly with any other owners you could talk to them as to whether they are bothered by the fact you have a cat.
You’ll find the Pets In The City website HERE then go to the menu on the left and click on “overcoming pet permissability issues”. And I think THIS is the Law Society document Struggler is referring to
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@Robbiejuve said:
My next move is what confuses me. The strata manager told me to go down the mediation path if I wasn’t happy with the decision but Jimmy and Blue’s replies suggest I ignore the notice, get the cat back in the apartment and wait for them to take me to mediation?
The question is, do you a) bring the cat back home and let the EC pursue action against you, which must start with mediation; b) bring the cat back and take action at Fair Trading to force them to permit it; or c)r leave the cat where it is and take action at Fair trading which will cost you the best part of $80 and is not refundable? The latter is the more legitimate way but I would be tempted to take the first route and let them pursue you (at their expense).
If you simply bring the cat back into the home they can follow up the Notice To Comply with a complaint to Fair Trading – this will cost you nothing.
The $550 fine is a worst-case scenario and is highly unlikely to be applied in your case. Much worse offences get much lower fines than $550. And given that the EC appears to be applying the by-law incorrectly there is every chance that you will win the case anyway.
If I were in your shoes, I would reply to the Notice To Comply and tell them that you believe they are imposing the by-law incorrectly, that you have been refused permission unreasonably and therefore you are happy for them to take action against you at the CTTT because you think you will win there.
At the same time, I would be strongly tempted to bring the cat back into the unit, where it belongs.
Then I would wait for the mediation to be called (at their expense), attend the meeting and restate the belief that you have unreasonably been refused permission because there is no ban on pets in the by-laws but they are trying to impose one.
The EC members not wanting pets in the building is not a ‘reasonable’ basis for refusing an application. The by-law says pets are allowed subject to permission being given on a reasonable basis. The EC is trying to countermand the wishes of the Owners Corps which has approved the by-law allowing pets.
If the EC wants a ban on all pets they have to get 75 percent of owners to agree to a new by-law but I think they have even left it too late to make that work retrospectively.
Respond to the Notice To Comply as I have described, attend mediation if you are called and I’m pretty sure you will be OK if it goes to an adjudication. If, in the final summation, the CTTT does decide that this de facto ban is allowed (unlikely), you will almost certainly be given the opportunity to find a new home for the cat before you are fined.
Also, demand all correspondence in writing, and note any attempts to bully you by sending letters of complaint to the strata manager as they can be used in evidence at the CTTT.
Attend any EC meetings where your issue is on the agenda (as it must be, if they are to discuss it) and refuse to leave if they say they want to discuss it in private – you are entitled to be there, even if you may not be allowed to speak, and there is no such thing as ‘private’ business in Owners Corporations.
Also, ask to see the minutes of the EC meeting that decided to issue the Notice To Comply so that you can make a record of the reasons given for the refusal.
Whichever route you take, hang in there – the EC is wrong and you are right.
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