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I was thinking of addresses etc but this brings us back to the discussion we had ages ago about whether or not EC members should be easily contactable. Those who’ve suffered the slings and arrows of outraged owners would be in tne same boat as CBF. Others would see it as part of the job. That discussion is here, for anyone who’s interested.
But I think in these circumstances, the withholding of contact details has little to do with privacy and everything to do with control.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.
@arthur said:
You do not say if the garden is at front or rear of owners villa.I would think that this is not a payment from strata funds if the garden is not on common property and therefore should be paid by the owner if the garden is at the rear of his villa.However,a garden at the front of the villa is on common property and is a strata charge if approved by the strata committee and all front gardens ed of weeded as a strata cleanup job.
I must be missing something. Do we know for a fact that gardens at the front are common property while those at the back are part of the lot? Is this just how it usually is or is it another weird part of strata law that has passed me by (again)?
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It is odd, as you say, but I don’t think it’s particularly sinister – just a bit unnecessary. Logically, if people vote against ending the dispute, then they are voting to continue it – or am I missing something here?
As far a submitting a motion that is directly contrary to another one that’s been submitted by someone else, again there’s no reason why they can’t but I can’t see why you would ask people to vote twice on the same issue.
If I were chairing this meeting, I’d call for a vote on the first motion then rule the second one ‘out of order’ since the decision had already been effectively made.
The only difference might be if the contrary motion included a qualifying paragraph. For instance, it could be a) stop the legal action or b) continue the legal action up to a limit of a certain amount or money or until a specific stage or something like that.
But if you are voting yes or no, you don’t have to vote no to no, then yes to yes. One vote suffices.
Perhaps the secretary just wants the owners to be aware of the choices – but you’re right, it’s a weird way of going about it.
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@kiwipaul said::
Strata Manager has no authority to spend OC funds on anything unless it’s been pre-approved or a vote has been held to approve it. I would say the vote would have to be unanimous to spend money on anything but common property.
With all due respect, you have no idea what the Strata Manager has been authorised to do. He may have been given the full authority to act on behalf of the EC or he may have been allowed to spend money up to a certain limit.
I also don’t know where you get the idea that it has to be a unanimous decision to spend money on anything other than Common Property. You may be right but I have never heard of this before. I would have thought at most you would need a 75 percent majority of those voting at a general meeting and even then I have a feeling that a simple majority would cover most circumstances. If the Strata Manager is delegated to make decisions on behalf of the EC/Owners Corp, then that would be far from “strictly against the law”.
I also wonder if the strata manager may have weighed up the cost of getting a gardener in to make sure the pit isn’t compromised against the time, hassle, money and effort involved in forcing an owner to clean up their garden.
In short, I wouldn’t be jumping to any conclusions without the full knowledge of the circumstances here.
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Even if the floor is common property, as they claim, then their client has damaged common property and has to repair or replace it. Sounds like an insurance assessor trying it on, to me. Unless the OC’s insurer willingly takes on the cost, tell the owner’s insurer he’s dreamin’
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I think the issue of repairs imminent versus a lack of a sinking fund might deter potential buyers, especially if there are any doubts over the non-selling lot owners’ willingness to contribute to repairs and maintenance.
It sounds like you could use a professional survey and a financial plan (which is basically what a sinking fund is for).
And reading the Act, it looks to me like you do need a sinking fund unless the two lots are physically separate. The same applies to insurance.
Regarding differences in strata law for 2 lot schemes, I have extracted a few sections (below). FYI: you have the same requirement to keep minutes and records of all decisions made if and when you have EC meetings. Have a look at the Act HERE.
Meanwhile, here are some sections specific to your situation:
69 Sinking fund to be established
(1) An owners corporation must establish a sinking fund.
(2) However, an owners corporation for a strata scheme comprising 2 lots need not establish a sinking fund if:
(a) the owners corporation so determines by unanimous resolution, and
(b) the buildings comprised in one of those lots are physically detached from the buildings comprised in the other lot, and
(c) no building or part of a building in the strata scheme is situated outside those lots.
83 Owners corporation to insure building
(1) The owners corporation for a strata scheme for the whole of a building must insure the building and keep the building insured under a damage policy with an approved insurer in accordance with this section.
(2) The building is to be insured for at least the value of the building indicated by the last valuation obtained for the building in accordance with this Division.
(3) The damage policy is to be in the name of the owners corporation.
(4) This section does not apply to an owners corporation for a strata scheme comprising 2 lots if:
(a) the owners corporation so determines by unanimous resolution, and
(b) the buildings comprised in one of those lots are physically detached from the buildings comprised in the other lot, and
(c) no building or part of a building in the strata scheme is situated outside those lots.
107 Auditing of accounts and financial statements
(1) An owners corporation may determine that the accounts and financial statements of the owners corporation are to be audited.
(2) However, the owners corporation of a large strata scheme must ensure that the accounts and financial statements of the owners corporation are audited before presentation to the annual general meeting.
(3) Any auditing of the accounts and financial statements of an owners corporation under this section must be carried out in accordance with the Australian Auditing Standards, unless the strata scheme concerned comprises not more than 2 lots.
Provisions relating to constitution of executive committee
1 Constitution of executive committee for strata scheme with 2 lots
(1) This clause applies to an executive committee for a strata scheme comprising 2 lots.
(2) The executive committee is to consist of:
(a) the owner of each lot that has only one owner, and
(b) one co-owner of each lot owned by co-owners, and
(c) the company nominee of each lot owned by a corporation.
(3) The co-owner of a lot is a member of the executive committee if the other co-owners have consented to that co-owner being the member or, in the absence of consent, the co-owner is the co-owner first named on the strata roll.
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I don’t know about avoiding WW3 – some owners are going to suffer financially while others benefit – but there is certainly a mechanism in place just for circumstances as yours.
The easiest way to do it is through unanimous agreement by all lot owners … meanwhile, back in the real world, you can apply to the CTTT for a re-allocation of UEs on the basis that they were not fairly distributed when the strata was set up. You will require a valuation of each of the lots although there is a certain amount of discretion allowed the CTTT adjudicator if, for instance, some owners refuse to allow their apartments to be valued (for obvious reasons).
What you need to do is get together with other owners who are being overcharged and talk to a strata lawyer and/or a valuer about the next step. You may even be able to do this as an owners corporation – after all, you have all the voting power.
I’m not sure about the clauses allowing you recover overpayents as a debt – I think that is only when the strata plan is less than six years old and the developer has used unfeasibly low levies to attract big money buyers.
Even so, it sounds like it’s worth the effort and the levies losers should be grateful for the free ride they have had so far.
This is what the strata Act says – the Tribunal referred to is the CTTT:
183 Order for reallocation of unit entitlements
(1) Tribunal may make order allocating unit entitlements
The Tribunal may make an order allocating unit entitlements among the lots that are subject to a strata scheme in the manner specified in the order.(2) Circumstances in which order may be made
An order may be made only if the Tribunal considers that the allocation of unit entitlements among the lots:(a) was unreasonable when the strata plan was registered or when a strata plan of subdivision was registered, or
(a1) was unreasonable when a revised schedule of unit entitlements was lodged at the conclusion of a development scheme, or
(b) became unreasonable because of a change in the permitted land use, being a change (for example, because of a rezoning) in the ways in which the whole or any part of the parcel could lawfully be used, whether with or without development consent.
(3) Matters to be taken into consideration
In making a determination under this section, the Tribunal is to have regard to the respective values of the lots and (if a strata development contract is in force in relation to the strata scheme) to such other matters as the Tribunal considers relevant.(4) Application to be accompanied by valuation
An application for an order must be accompanied by a certificate specifying the valuation, at the relevant time of registration or immediately after the change in the permitted land use, of each of the lots to which the application relates.(5) Qualifications of person making valuation
The certificate must have been given by a registered valuer under the Valuers Act 2003 authorised under that Act to make such a valuation (a qualified valuer).(6) Ancillary orders that may be made if original valuation unsatisfactory
The Tribunal may, if it makes an order allocating unit entitlements that were not allocated in accordance with a valuation of a qualified valuer and, in the opinion of the Tribunal, were allocated unreasonably by a developer, also order:(a) the payment by the developer to the applicant for the order of the costs incurred by the applicant, including fees and expenses reasonably incurred in obtaining the valuation and the giving of evidence by a qualified valuer, and
(b) the payment by the developer to any or all of the following people of such amounts as may be assessed by the Tribunal to represent any overpayments (due to the unreasonable allocation) for which liability arose not earlier than 6 years before the date of the order:
the lessor of a leasehold strata scheme
the owners corporation
the owners of lots.
(7) Recovery of amounts awarded
An amount ordered to be paid under this section may be recovered as a debt.(8) Who may make application?
An application for an order under this section may be made only by:(a) an owner of a lot (whether or not a development lot) within the parcel, or
(b) the owners corporation, or
(c) the lessor of a leasehold strata scheme, or
(d) the local council, or by any other public authority or statutory body representing the Crown, being an authority or body that is empowered to impose a rate, tax or other charge by reference to a valuation of land.
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It strikes me that the best way to pursue this line is for your friend to ask the OC’s insurers as well as his individual car insurers – policies may differ between companies and only they can provided definitive answers.
However, I have a horrible feeling that whoever bashed the car would be responsible – driving through a space that’s too narrow is a judgement call by the driver.
Your friend needs to bite the bullet and lodge a mediation application at Fair Trading.
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Let me begin by saying I think you need to talk to an experienced specialist strata lawyer about this – but I think it could be worthwhile as these property managers may have overstepped themselves.
For instance, if they have voted to re-appoint themselves as property managers or have blocked attempts to take legal action against them, they might be in trouble.
It’s hard to know the answer unless you know the specifics (eg, if it is, in fact, a ‘board’, then this would be Company Title and comes under company law, not strata law).
And even if your brother has grounds for legal action, if I were in his position I’d be offering to sell the unit to the property managers at above market rates just so they can avoid the great trouble he is about to rain down on them.
Apart from that, strata litigation is one of those areas of life that even when you win, you often lose. And that’s why, ironically, your brother needs to talk to a lawyer asap.
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@struggler said:
It sounds like the EC doesn’t want to get involved in issues in this complex. My friend reports that owners have changed common property without permission and without repercussion. Anything goes and the EC just turns a blind eye. Suggestions on what may friend can take to the AGM to try and get the attention of owners and the action from the EC?
Just to get back to the original over-arching question, perhaps the way to get the EC’s attention is for your friend to map out the means by which they plan to have the running of the building brought back under control.
For instance, they may have a valid case to take to the CTTT and ask for the statutory appointment of a strata manager to replace the EC and run the building properly. I’m not saying the CTTT would go for it but if there is enough evidence of the EC willfully ignoring their responsibilities with regard to Common Property, it could get a hearing.
Perhaps the prospect of having their power removed from them – and I’ve yet to hear of an Owners Corp that was happy with the imposition of a Statutory SM – might have the desired effect of getting their attention and forcing them to lift their game.
In reality, your friend would have to prove that some owners were suffering unduly because of the way the building was being run; the ongoing casual annexation of common property and the failure to manage the by-laws which led to even a minority of owners being disadvantaged would come into that category.
I wouldn’t recommend actually applying for the appointment of an SM but the mere showing of the instruments of torture seemed to work for the Spanish Inquisition, so it might be worth a bluff.
FYI: Here’s the relevant section of the Act:
183B Orders for appointment of strata managing agent
(1) Order appointing strata managing agent to exercise functions of owners corporation
The Tribunal may, on its own motion, make an order appointing a person as a strata managing agent:(a) to exercise all the functions of an owners corporation, or
(b) to exercise specified functions of an owners corporation, or
(c) to exercise all the functions other than specified functions of an owners corporation.
(2) Order may confer other functions on strata managing agent
The Tribunal may also order, when appointing a strata managing agent under this section, that the strata managing agent is to have and may exercise:(a) all the functions of the chairperson, secretary, treasurer or executive committee of the owners corporation, or
(b) specified functions of the chairperson, secretary, treasurer or executive committee of the owners corporation, or
(c) all the functions of the chairperson, secretary, treasurer or executive committee of the owners corporation other than specified functions.
(3) Circumstances in which order may be made
The Tribunal may make an order under this section only if satisfied that the management structure of a strata scheme … is not functioning or is not functioning satisfactorily.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.
Interesting …if the decision was 50-50, does that mean no permission or no refusal? I guess it’s the former but it sounds like your friend has very good grounds to take to the mediation.
If the EC wants to ban pets on principle, they need to change their by-laws (and that ain’t going to happen if the EC vote reflects the feeling of of the owners).
Compromise is the key to successful mediation and if your friend offers to allow reasonable conditions to be applied to the permission, that should play well at the CTTT (if it gets that far).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.
The key word here is ‘reasonable’ and that varies from place to place. Insurers can only tell you what they think the potential risk of a certain building in a certain area is.
An apartment on the 10th floor of a high security building probably doesn’t need double deadbolt locks. But a unit in a building that’s easily accessible from the street in a high crime area needs all the help it can get.
It sounds like your unit is OK by the insurers’ standards and that will be enough for the landlord who may be reluctant to pay for additional locks without good reason.
But the other key issue is your peace of mind. Many police stations have crime prevention officers who conduct security audits on homes. Ask them what’s reasonable for this unit.
You can always change the locks at your own expense provided you give the landlord a key within seven days. You will probably need their permission before you start adding additional locks or security devices
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Expenses really should come with receipts and a prior agreement to pay them. An unofficial treasurer paying himself expenses can’t be done without some sort of agreement from the Owners Corp.
An owners corp can agree at an AGM to pay ex gratia payments to EC members retrospectively for work done the previous year. That’s it.
To answer your question, is it legal – the answer is probably not. You could let the new guys sort it out but this will be outside the scope of their normal duties and I wonder how much they’re going to charge.
Is $600 expenses for 13 years of voluntary work really that much? Some accountants charge $50 an hour, rather than a year.
Frankly, bearing in mind that your relationship with your one and only neighbour is in serious strife, I’d be tempted to say that you are prepared to let this go as a gesture of conciliation – it’s a small price to pay to begin repairing your relationships.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.
As long as the minutes of the last meeting go out with the formal notice of the meeting at least seven days before, you are OK. Because yours is a ‘not large’ strata plan, proxies can be present at or just before the meeting. IOn large strata plans (over 100 lots) the proxies have to be given to the secretary at least 24 hours before the meeting.
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Refusal to allow inspection of the strata roll for privacy reasons is total BS and it’s often a smokescreen. Using the ‘privacy’ excuse is not only wrong, it’s often a sign that the property manager either doesn’t know the law or doesn’t want you making contact with the other owners directly (for whatever reason) … or both.
ANY owner is entitled to see documents held by the Owners Corporation or their employees or agents (see quotes from Act below) although the request should be in writing, seven days notice must be given and there will be an inspection fee.
The Secretary of the EC is legally obliged to maintain the strata roll (although that’s often delegated to the Strata Manager) at the very least to establish who is entitled to vote and who needs to get notification of meetings etc.
So you could ask the secretary to allow the inspection of the records or, if there’s a problem with the secretary, you could make the request as an ordinary owner.
By the way, refusal by a managing agent to provide the documents in response to a formal request by the EC carries one of the heftiest fines issued at the CTTT. So make no mistake, this ‘privacy’ nonsense isn’t only wrong – it’s illegal.
This is what the Act says:
22 What are the functions of the secretary of an owners corporation?
The functions of a secretary of an owners corporation include the following:
(c) to maintain the strata roll,
(d) to enable the inspection of documents on behalf of the owners corporation in accordance with section 108
OK, so what does Section 108 say?
108 Inspection of records of owners corporation
(1) Who may inspect records?
An owner, mortgagee or covenant chargee of a lot, or a person authorised by the owner, mortgagee or covenant chargee, may request the owners corporation to allow an inspection to be carried out under this section.(2) Form of request
The request must be in writing and be accompanied by the fee prescribed by the regulations.(3) Items to be made available for inspection
The owners corporation must make the following items available for inspection by the person who makes the request or the person’s agent:(a) the strata roll,
And what does the strata roll include?
98 What must be recorded in the strata roll?
(1) There must be recorded in the strata roll in relation to a particular lot:
(a) the owner’s name and an Australian address for service of notices or the name of the owner’s agent appointed in accordance with Part 3 of Chapter 4 and the agent’s Australian address for service of notices …
In conclusion, if you don’t have the support of the EC secretary, you may have to jump through a few hoops and pay a fee to be allowed to inspect (and photocopy) the strata roll, but you do have the right, even if it”s just as an ordinary owner.
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