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Kiwipaul said:
Strata Manager shouldn’t be making these decisions. He works for the owners and they have the final say. SM can advise owners of the law regarding issues (assuming he knows which it appears he doesn’t).
Once again, it depends on what powers have been delegated to the Strata Manager. You can’t assume that the strata Manager hasn’t been given full permission to make these decisions on behalf of the Owners Corp. You don’t know this unless you have seen the contract between the SM and the Owners Corp and any related decisions that have been made at AGMs.
However, you are right in so far as the Strata Manager shouldn’t have made the decision to do nothing. There is no question that the Owners Corp not only has responsibility for Common Property repairs but they have a legally enforceable duty to carry them out, regardless of any other considerations (such as defect claims and the like).
If Danny54 wants to press the case he can take it to the CTTT who will more than likely order the work to be done..
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The law allows investment of your funds (see below) but the EC is entitled to ask for proof of where it has been invested and how those investments are faring. At the very least the investments would have to be “arms length” and legal and if there is concern then the EC needs to get on top of that immediately.
It’s probably time for someone to ask some pertinent (or even impertinent) questions and, at the first sign of any dogy dealings, insist that the money be returned to the scheme’s bank account.
This is what the law says:
73 Can money in administrative fund or sinking fund be invested?
(1) An owners corporation may invest any money in its administrative fund or sinking fund in any manner permitted by law for the investment of trust funds or in any prescribed investment.
(2) Any interest received on an investment made under this section forms part of the fund to which the investment belongs.
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Most of what’s in the document applies to most buildings but every strata scheme is different in some way and there may be instances, such as you have identified, that require some tweaking. The way to do that is to either remove or change the items in the document to suit your circumstances and then approve the document ‘as amended’ or you could have a separate by-law, for instance, making windows and balconies part of common property, which brings your building into line with the memorandum.
The memorandum is not a one-size-fits-all solution and it’s not a law (until you make it a by-law). There’s nothing to stop you changing it to suit your strata scheme and it will solve a lot more problems than it creates.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.
Something that’s just occurred to me – is this complex really strata or is it Company Title? If it’s the latter, then a whole different set of rules pertain. If it’s strata, you will also need to look at when the strata plan was registered, by whom and under what basis. These buildings are all pre-1940. Strata law didn’t exist before 1962 (although many Company Title buildings have changed to strata since then).
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You would need a by-law changing the basis on which water usage was calculated (and I’m not 100 percent sure that would be legal) but even if you got the 75 percent of owners to agree, how would you be able to check how many people were actually living in a unit without their cooperation? In short, I don’t think the head (or bed) count method will work.
A more elegant solution may be to pass a by-law allowing owners to install approved individual water meters at their own expense, but for their water usage to then be extracted from the general bill, and based on their general usage.
Written into any such agreement would be clauses about the integrity of the meter and its availability for inspection.
Gradually, then, the over-users would be isolated and would be paying an amount that truly affected their water usage. Retro-fitting water meters is neither cheap nor easy but it does make the system a lot more fair and is good for the environment too.
An ‘opt-in’ system would get round issues with meter reading and enforcement.
Have a look here to give yourself an idea of what’s available.
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You should be able to discover the information you need at Lands NSW which has an online search facility costing $11.90 per search – you will find that HERE. Let us know if you have tried than and it didn’t work.
There are a couple of legal requirements to notify the Owners Corporation (reproduced below) but the problem arises of how you enforce them when you don’t know who to write to.
In the first instance, Section 118, the owner of a unit is required to inform the Owners Corp of who they are and where they can be contacted. The penalty for not doing so is that you don’t get to vote at general meetings (big deal!).
Under Section 119, owners are required to inform the OC when they lease their unit and to whom. The penalty for failing to do that is a whopping five units ($550). But, once again, if they won’t say who they are, how do you enforce that?
If this is in fact Housing NSW and they are deliberately and systematically avoiding their legal duties so as to take over strata buildings by stealth, whoever made that decision should called to account. Any system where a bureaucracy plays fast and loose with the law is bad. And a situation like this where landlords have rendered themselves uncontactable and therefore unaccountable is bad for the community and for tenants.
The whole question of Housing NSW tenats in private strata has been hotly debated HERE.
Meanwhile, this is what the Act says about notification:
Part 2 Notices required to be given by owners, occupiers and other persons
118 Notice to be given to owners corporation of right to cast vote at meeting
(1) Person with right to vote at meetings must notify owners corporation
A person who has an interest in a lot that, subject to this Act, gives the person a right to cast a vote either personally or by nominee at meetings of the owners corporation must notify the owners corporation in writing of that interest.(2) Contents of notice
The notice must specify the following information and, if the interest is a mortgage, include confirmation by the mortgagor or be verified by statutory declaration of the mortgagee:(a) the person’s full name and an Australian address for service of notices,
(b) the lot concerned and the exact nature of the person’s interest in it,
(c) the date on which the person acquired the interest,
(d) if the voting entitlement conferred by the interest is one that, according to Schedule 2, is to be exercised by a nominee, the nominee’s full name and address for service of notices.
(3) Other matters to be specified in notice
The notice must specify the manner in which the interest arose and be verified by statutory declaration if any of the following applies to the interest:(a) the interest is that of the executor or administrator of the estate of a deceased person,
(b) the interest is that of the liquidator or receiver in bankruptcy of any person,
(c) the interest has arisen by operation of law or the order of any court,
(d) the interest has arisen in any manner otherwise than by transfer of the interest from some other person or the discharge of a mortgage.
(4) Owners corporation may require notice to be given
The secretary of the owners corporation, if of the opinion that a person obliged to give notice under this section has not done so, may by a requisition in writing served on the person, require the person:(a) to state, within 14 days, whether or not the person is a person required to give notice under this section, and
(b) if the person is such a person, to give that notice.
(5) Person prevented from casting vote if certain requirements not met
A person is not entitled to cast a vote at a meeting of the owners corporation if the person has not complied with a requisition served on the person under subsection (4) or, in the case of a vote to be tendered through a nominee, if the nominee’s full name and address for service of notices have not been notified under this section.(6) Changes in certain information to be notified
A person who has given notice under this section may by further notice advise any change of nominee or of the person’s or any nominee’s address for service.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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Absolutely right. The two have to act in conjunction – you need your by-laws to say you can’t make changes to common property without permission but if you do, you and subsequent owners are responsible, not just for their repair and maintenance, but for any damage the changes may cause to the rest of the building.
FYI: A friend recently sold an investment property and as part of the disclosures to the new owner, he had to state that he hadn’t made any changes to common property while he was in possession of the apartment.
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Nothing ‘naive’ about getting tripped up by the differences between Qld and NSW strata law – at least I hope there isn’t because I do it all the time.
The only thing missing from ChrisJ’s story is the question of whether or not the Strata Manager or Owners Corp is going to bill the gardening freeloader for the use of the OC gardener – and it sounds like it wasn’t even the owner of that property who asked for the garden to be cleared. Nothing sinister here, I reckon, just a lack of communication that could be fixed with a phone call.
But I reiterate, it looks to me that the SM was perfectly entitled to make that decision – they should, however, have explained to owners why they did what they did.
You have a very different strata system in Qld that was based originally on holiday lets. It also has a long history of corrupt behaviour by on-site managers (hence the specific laws you have referred to).
Strata in NSW was originally based on residential use so we often come at the same problems from completely different directions.
These days Qld is struggling to cope with owner-residents who have different priorities from holiday flat owners. In NSW, we have an ongoing battle with holiday let companies who are trying to bring the Qld way of doing things into residential buildings in NSW.
There are elements of Qld law (like limits on proxies) that we could do with here. But there are also fundamentally corrupt practices – like the sale of management rights by developers – which are enshrined in law North of the border but which have been effectively outlawed here.
Like I said before – not just different laws, different planets.
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I would also be asking why you need a wholesale change in by-laws right now. I suspect (hope) that one of the forthcoming changes to strata law may be to ban proxy harvesting. Maybe somebody trying to push through changes before the shutter comes down on a system that turns democracies into dictatorships.
In practical terms I’d focus on the 25 percent of people you need to block the changes and ask them if they really think you need to rewrite the rule book now when you are probably going to have to tweak them, at the very least, by this time next year, if not before.
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If he’s parking over common property he’s parking on common property – it doesn’t matter where his wheels are. The next time the strata manager or rental agent writes to him it should be to explain that he is breaching a by-law which means he is also breaching the terms of his lease.
It’s a shame you can’t work this out amicably but this person seems to have no consideration for his neighbours so it may take a warning that he could be evicted if he doesn’t pull his head (and his truck) in.
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@kiwipaul said:
I was fully aware the OP was in NSW and my opinion is the same … then this …the BC manager or OC cannot spend BC money on private areas without a very good reason and at the very least a majority of the owners voting in favor …
And what you said at first was …
I would say the vote would have to be unanimous to spend money on anything but common property. (My emphasis – JT).
What you are saying now is quite different from what you said at first. But the important thing is that we have established that …
a) Under certain very common circumstances the Strata manager CAN spend money without necessarily running to the EC every time he or she needs to do so …
b) There are circumstances – to which you allude yourself – where it’s permissable (and preferable) for the Owners Corp to pay for the work to be done.
What we haven’t mentioned is that the Owners Corp can and probably should pursue the owner for payment of the work done.
In the case first raised by ChrisJ, another owner requested that the Owners Corp gardener cut the weeds and grass in a neglected garden.
Let’s imagine (for it is dangerous to assume) that this complex has the standard by-law that says the owner is required to maintain their garden and keep it tidy.
Failure to do so would then be a breach of by-laws and that’s where the NSW strata Act kicks in. This is what it says (Sub-clauses 2 and 5 left out as they aren’t relevant to this discussion):
63 What power does an owners corporation have to carry out work and recover costs?
(1) Application of section
This section applies if a person who is required to carry out work as referred to in this section fails to carry out the work.(3) Work required to be carried out under term or condition of by-law
An owners corporation may carry out work that is required to be carried out by a person who is the owner, mortgagee or covenant chargee in possession, lessee (or, in the case of a leasehold strata scheme, sublessee) or occupier of a lot under a term or condition of a by-law and may recover the cost of carrying out the work from that person or any person who, after the work is carried out, becomes the owner of that lot.(4) Work that is duty of owner or occupier to carry out
An owners corporation may carry out work that is required to be carried out by a person who is the owner, mortgagee or covenant chargee in possession, lessee (or, in the case of a leasehold strata scheme, sublessee) or occupier of a lot in order to remedy a breach of a duty imposed by Chapter 4 and may recover the cost of the work from that person.(6) Recovery of costs as a debt
The costs incurred by an owners corporation in carrying out any work referred to in this section may be recovered by the owners corporation as a debt.If that by-law regarding the maintenance of the garden is in place, all ChrisJ really has to do is ask the EC or the strata manager if the owner of the messy garden is being charged for the gardener’s time as is permitted under the law. And he can even put that up as a motion to the EC or the next AGM.
By the way, I see no obligation on the OC to charge the money if they choose not to; the Act says ‘may’ not ‘must’ when it comes to recovering the cost as a debt.
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This sounds suspiciously like a “fraud on the minority” or whatever the correct legal term is – basically it’s a majority decision that falls within the rules of strata law but which is quite clearly intended to benefit one group of owners to the detriment of another.
So, firstly, I think it falls outside the remit of strata law – and that is a good thing. Your next move should be to chat with a lawyer about taking this to the District Court or even the Supreme Court where, unlike with the CTTT, you can have both costs and compensation awarded (if you win).
I’d be looking to have all unfair payments refunded, backdated to when you first claimed, plus the costs of taking the action, plus an order to draw up a by-law removing the car park payment from the levies and making them part of a payment to the admin fund – as well as a commercial parking fee – payable by all of those who are allowed to park there.
Free parking is a luxury enough without forcing owners who don’t have this benefit to pay for part of it.
Talk to a lawyer, get an estimate of how much it would cost to run a case and then get the other non-parking owners to chip in to a fighting fund.
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Yes, that’s true … if you are aware of any changes that have been made. The first many ECs are aware of changes is when they have a sticky-beak when a unit is put up for sale. Then it all gets messy if common property has been altered and the unit is sold.
In that case it has been legally established that if the previous owner had changed common property without permission or knowledge of the Owners Corp and the replacement breaks, the Owners Corp is liable to repair the new installation, despite the fact that they didn’t approve it. The example given of changing cheap sliding doors to expensive bi-fold French windows is a real one.
I too believe in the KISS principle but this is strata and nothing is simple. have a look at this posting from about a year ago. As I’ve said elsewhere, there’s logic, there’s common sense … and then there’s strata law which often seems to employ neither.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.
I think it may be easier than you think. Pass a by-law that says owners are responsible for any unauthorized changes to common property, their repair and maintenance and the results of any damage done to common property and personal property as a result of the unauthorized work. The responsibility passes to the next owner if the unit is sold. This by-law doesn’t cancel out the owner’s requirement to inform the EC about and seek permission for changes to common property but it does include common property that has been altered by previous owners.
You would also, obviously, have a by-law covering authorized works with terms and conditions attached.
Of course when I say ‘easier than you think’ this doesn’t take into account a collective desire by owners to get what they can out of an imperfect set of controls.
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Housing NSW has sent a comprehensive response to my questions (which I reproduce below, for the sake of reference). It makes interesting reading …
- Is there a policy to place Housing NSW and rent-assisted tenants in privately owned strata developments?
- If so, does Housing NSW consider the suitability of the individual strata developments for its tenants?
- Does Housing NSW consider the suitability of individual tenants for strata developments?
- How many families does Housing NSW currently have in strata developments?
- To what lengths does Housing NSW go to make tenants aware of the by-laws (and their enforcement) in the buildings where they are placed?
- Does Housing NSW have a policy related to complaints and Notices To Comply issued by Executive Committees in strata developments?
From a Housing NSW spokeman – Background:
- There are many types of ways in which governments in Australia assist people on low incomes to rent private properties. In the vast majority of cases, the individual receiving rent assistance rents the property directly from a real estate agent and government has no involvement in their tenancy.
- 1.1 million Australians receive rent assistance from the Australian Government to rent privately and they are no different to any other renter.
- Approximately 20,000 people per year are assisted by the NSW Government with a loan for a rental bond for a private rental property. These people also make their own arrangements to lease properties directly with real estate agents.
- Housing NSW also leases properties in the private market for periods of time to provide additional housing for people on low incomes.
Q1: Does Housing NSW have a policy of placing public housing tenants and rent-assisted tenants in strata development?
& Q4: How many families does Housing NSW currently have in strata developments?
- Most public housing tenants are placed in the 115,000 properties owned by Housing NSW.
- Housing NSW also currently leases around 3,000 properties in the private market. In over 90% of these cases, Housing NSW leases an entire block of units or individual properties which are not part of a block of units. Many of these are strata developments, but Housing NSW leases the whole block so the issue of private neighbours in the same block does not arise.
- Housing NSW has a policy of avoiding leasing individual properties in strata developments.
- In exceptional circumstances a tenant may be placed in an individual property in a strata development, but this applies in less than 200 cases across NSW – 0.2% of its total number of tenants.
- Individuals who receive rent assistance who are not tenants of Housing NSW (and this is the large majority of cases) determine for themselves where they live and their tenancies are not managed by Housing NSW.
Q2: Does Housing NSW consider the suitability of individual strata development for its tenants?
As above, Housing NSW makes no significant use of this arrangement.
- In exceptional cases, usually where a tenant needs to be close to family or social supports, the arrangement may be considered.
- The suitability of the arrangement would be considered on an individual basis.
Q5: To what lengths does Housing NSW go to make tenants aware of the by-laws
- In the rare case of a Housing NSW tenant being placed in an individual property in a strata development, the tenant will be informed of the arrangements which apply to that property.
- Most rent-assisted tenants are not Housing NSW tenants and sign a lease with the landlord, whose responsibility it is to make them aware of the local conditions of tenancy.
Q6: Does Housing NSW have a policy related to complaints issued by Executive Committees?
- Housing NSW has a complaints procedure and a complaints telephone line for any type of complaint. Complaints in relation to an individual tenant are investigated and action taken if there is a need for this.
- It should be borne in mind that there are additional elements of the Residential Tenancies Act which apply only to social housing tenants. This means stronger action can be taken in relation to tenants who breach their agreement, for example for anti-social behaviour, than apply to private tenants.
Restoring properties to their original standard
- Most Housing NSW leasing agreements require Housing NSW to restore properties to their original standard at the end of the leasing period, excepting for fair wear and tear.
- Housing NSW consults owners about this and agrees on a schedule of works.
- In a very small number of cases, it is not possible to reach full agreement with owners who may require works over and above what Housing NSW thinks is reasonable, and these matters can be resolved in the Tribunal.
- We are not aware of a case in which Housing NSW used its standard colours to redecorate a leased property. Housing NSW uses a wide range of colours across its 115,000 properties and precisely seeks to avoid them all having the same colours.
- We value the leasing arrangements we have with private owners. Housing NSW successfully leases 3,000 properties. Many hundreds of landlords are delighted with this arrangement and are keen to renew their leases with us and we in turn are keen to have a mutually beneficial arrangement with them.
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