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improvements require a special resolution which is a majority for, and less than a quarter voting against.
In NSW these require a majority of votes at a general meeting – but that’s only of those present and voting, not of all owners. I believe in Victoria, Special Resolutions require a majority of all owners (but there is a provision for interim resolutions which will become permanent if they aren’t challenged withing a month of the vote).
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There is a provision under NSW strata law that if the developer presents a budget that is seriously under estimated – to keep levies low to help sell their properties – the Tribunal can order them to compansate the owners.
The informal advice I’ve had on that is that the cost of pursuing a claim would outweigh any benefit. So why have the law in the first place if it is so impractical.
The next review of strata laws should establish benchmarks – maybe CPI plus 5 per cent – after which the developer has to make up the shortfall for the first three years.
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When your building applied for its occupancy certificate, all these systems required by the standard would have been installed and certified.
Yeah … in an ideal world – but that’s not the world we live in. It depends on the developer and the certifier and how diligent they are.
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Rereading JTs other post I want to ad,
What other post? It would help a lot if you could reply to the post to which you are responding.
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Here’s a horror story about what happens when Company Title boards aren’t governed by strata law and a retiree is forced out of her home by chronic damp.
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My questions are:
- are abseiling anchor points a construction requirement? I’ve looked about and can’t find this anywhere. That’s HERE.
- do developers have to submit a common property specification, is this available to owners? That’s HERE.
- how to placate owners about strata levies that were clearly underestimated- and make them understand that this is only the ‘honeymoon’ year, and they will all likely go up by 20-25% next year due to the first year not including Capital works budget and extra required for other things mentioned. That’s HERE.
I think you may have done yourself a disservice with such a long and detailed (and interesting) post. Each of these issues might be worth a post on its own. So that’s what I’m going to do. I’m closing this post to responses and opening up three separate questions for you on this page. How’s that for service? Flatchatters can now answer the questions individually by clicking on the associated links above,
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We three are the ones who have tried to get the rest of the owners to approve these repairs at the last 3 AGMs to no avail. So we are trying to get the job done and aren’t being negligent.
It’s not a question of proving that you are negligent. You can go to NCAT and ask them to issue orders overturning decisions not to maintain and repair common property.
You would only need super-majorities if you were changing or improving common property, so the 51 percent rule applies. And don’t forget, as someone has already pointed out, you may already have a mjority, depending on how your unit entitlements fall.
I also heard a whisper the other day that strata committees can act in defiance of the owners corp if they are doing so to fulfil their statutory duties. Maybe talk to a friendly strata lawyer about that.
Or have the “easy way … hard way” chat with your owners. They can agree to do this the easy way – just get it done and pay the bills – or the hard way, fight it at the Tribunal, pay for lawyers and still have to pay to get it done.
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Owners are not forbidden from attending strata committee meetings in Victoria but there is no statutory requirement to inform owners that there is going to be a strata committee meeting.
This is unlike NSW where owners must be informed about the meeting and have the right to attend. However, they can only speak if allowed to do so by a vote of the committee.
Under Section 109 of Victoria’s Owners Corporation Act, only committee members have to be informed. Thus, without saying it in so many words, the committee would have to inform ordinary owners about the meeting only if they wanted them to attend.
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I assume the NSW legislation has a similar provision
In NSW would go for orders under Section 232 (2) while keeping a watchful eye on Section 237:
232 Orders to settle disputes or rectify complaints
(2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if—
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
237 Orders for appointment of strata managing agent
(1) Order appointing or requiring the appointment of strata managing agent to exercise functions of owners corporationThe Tribunal may, on its own motion or on application, make an order appointing a person as a strata managing agent or requiring an owners corporation to appoint 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 agentThe Tribunal may also, when making an order under this section, order that the strata managing agent is to have and may exercise—(a) all the functions of the chairperson, secretary, treasurer or strata committee of the owners corporation, or(b) specified functions of the chairperson, secretary, treasurer or strata committee of the owners corporation, or(c) all the functions of the chairperson, secretary, treasurer or strata committee of the owners corporation other than specified functions.(3) Circumstances in which order may be made The Tribunal may make an order only if satisfied that—(a) the management of a strata scheme the subject of an application for an order under this Act or an appeal to the Tribunal is not functioning or is not functioning satisfactorily, or(b) an owners corporation has failed to comply with a requirement imposed on the owners corporation by an order made under this Act, or(c) an owners corporation has failed to perform one or more of its duties…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 time your neighbours learned the facts of strata life, one of which is that they have an almost unlimited responsibility to maintain and repair common property.
Now, they can continue to dig their heels in but you or any owner could toddle along to Fair Trading and NCAT and seek orders requiring the Owners Corporation to fulfil its legal obligations.
If it gets to NCAT, one serious problem is that the Members have it within their powers to appoint a statutory manager who will take over from the owners and start making decisions which could turn out to be very expensive indeed – and much more so than the current estimates.
Be clear on this, failure to maintain common property is one of the key factors in NCAT deciding that a strata scheme is seriously dysfunctional and may well trigger the appointment of a statutory manager whether you want one or not.
Right now the owners have the opportunity to fulfil their obligations in a way that suits the majority, and that could mean, for example, a phased work schedule financed by a special levy or a strata loan (or a combination thereof). Failure to do anything could very easily result in being ordered to pay for work which is more expensive, on a time schedule that suits no one and where there is no opportunity to negotiate compromises.
It’s time your neighbours got their heads out of the sand. I’m sure someone will come out and say that they can do what the majority wants – usually a bloke whose cousin once met a lawyer at a barbecue – but they have legally enforceable obligations and if they won’t face up to them, the Tribunal is highly likely to appoint someone who will.
And if that argument doesn’t convince them, seek mediation at Fair Trading and maybe then they will take you seriously.
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Apart from finance, as cited above, the biggest difference is that your building would be covered by strata law, with all its flaws and inconsistencies but a regulated set of by-laws, rather than company law and the decisions of your board. With that in mind, intractable disputes in strata can be resolved at little cost through mediation and the state tribunal while in company title, it’s off to the Supreme Court (if Vic is the same as NSW in this regard).
Yes, I know tribunal disputes can get very expensive if both sides resort to lawyers, but they don’t have to.
Company title articles may offer your owners the option to ban pets, airbnb, control rentals and even (unless the laws have changed) ban children. But those “freedoms” may actually be the reason you want to move to strata.
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Do strata by-laws supersede acts such as the equal opportunities act or disability act?
No, it tends to be the other way round. I can’t think of any law that doesn’t supersede the strata Act (but then I’m not a lawyer).
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