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OK, firstly, this topic was posted (and answered, albeit without the additional information provided here) under another username HERE. It would help everyone reading this website if users responded to the answers given rather than start a completely new thread under a different name.
Now, as this seems to be common property that requires maintenance, and your neighbour is unsympathetic, then you should consider taking action at Fair Trading and the CTTT to force the Owners Corp, that’s you and your neighbour to spend some money fixing the problem.
Also, as I think I said in my previous answer to this question, don’t you have a by-law about the peaceful enjoyment of your lot? Your neighbour is in no position (physically, morally or legally) to judge how noisy the equipment is in your home since they are far removed from it.
Fair Trading will demand a mediation session first. Take recordings of the noise on a smartphone or other digital device because they will have a time stamp on them. Then ask for a legally binding resolution at the mediation – otherwise you can proceed to the CTTT which will be time consuming and emotionally draining for both parties.
Or you could get really serious and ask for a noise abatement order at your District Court. The interesting thing about that is if you get one and they disobey it, it’s a criminal rather than a civil matter.
But try and talk it out first. As Churchill said, “Jaw-jaw is better than War-war.”
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Technically there is no legal obligation to hold EC meetings (unlike AGMs) but that’s only if you don’t make any decisions. You sound like you have a lot of discussions that need to be had and your EC meeting minutes are the most important way for owners to know what’s going on. Failure to have meetings is irresponsible and reckless. A ‘father knows best’ benign dictator only works if they get it 100 percent right 100 percent of the time. And they don’t because that’s impossible.
Here’s a thought: Demand an EC meeting at which one item on the agenda should be declaring the role of chairman open and the election of a new chair. The chair is elected by the EC not the AGM and any proxies he may hold at a general meeting count for nothing in an EC vote.
Here’s the bit of strata law that says a meeting must be held if request by one-third of the mebers of the EC:
Executive committee meetings may be required to be convened
(1) The secretary of an owners corporation or, in the secretary’s absence, any member of the executive committee must convene a meeting of the executive committee if requested to do so by not less than one-third of the members of the executive committee, within the period of time, if any, specified in the request.
Perhaps the threat of such a public humiliation may make this autocrat stop and think about what he’s doing. Or it could make him worse … in which case you need to send a message to all the owners that the EC is not functioning as it should and that you collectively refuse to take any responsibility for decisions made without your input.
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@struggler said:
At our AGM those on the EC asked if they were covered by insurance. I feel they may believe that no matter what they do (or don’t) do, no matter how they come to a decision (without taking into regard the consequences) that they will be covered and will not be out of pocket in any way.Whale is right and the way “common law” manifest in these situations is in the principle of culpable negligence. To give a hypothetical example, a resident complains that a wall looks unsafe, the EC hire a builder to look at at and he says that not only is it unsafe, it’s dangerous but he can fix it for, say, $10K. The EC thinks $10K is way more than they are prepared to pay and instead decide to do nothing. Right there, they have not only breached their legal duty to maintain and repair common property, they have probably breached the terms of their insurance by deliberately and recklessly ignoring professional advice. If the wall falls down and injures someone, the individual EC members could be paying damages out of their own pockets. If the injured person is working in the building then under the terms of the Work Health Safety legislation, they could even go to jail.
Finally, many insurance policies specifically exclude matters such as defamation and libel. So they need to be careful about what they do (or don’t do) and say.
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Jeremy, you’re right. Regardless of the movement of money, your Strata Manager has presided over un unsustainable drain on the sinking fund, which means your strata plan is not only in debt but non-compliant with the law. The SM sounds like he was trying to avoid the inevitable hike in levies (or maybe you have a former EC member who sold recently). Anyway, what you need is a budget that a) restores the Sinking Fund to it’s correct level (over two or three years) and b) puts enough money in the admin fund to run the building.
You might want to have a serious look at sacking your strata manager who has allowed/encouraged this to happen. If your sinking fund is over-supplied, you adjust the payments at the next budget – you don’t start playing “find the pea” with cups of money.
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I’m thinking net curtains … a quiet word with the landlord … split the cost if need be … in they go and then you tell these aging hippies they really need to keep the door shut if they’re going to wander around in their unmentionables and want to stay in the place. The landlord doesn’t need a reason to end their lease … all it takes is time. And I’m sure he’s as concerned as anyone about the value of his property being affected.
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Firstly, the EC is obliged to try to find volunteers to fill the vacant posts until the next AGM so that might solve the vacancy position (if you can find a volunteer and the two remaining EC members can agree).
A better option might be to find someone to take the retiring member’s place as a proxy – ie, the member doesn’t resign until the AGM – and carry on until you can sort this out at the AGM, giving you time to identify some potential new members.
At the AGM you first have to decide on how many members there will be on the EC (maximum 9, minimum 1, answering your other question) and you’d do that on the basis of how many people volunteered (or that number minus 1, so you can vote the troublesome member out).
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It would probably help a lot if you could stop thinking about “them and you” as if they were rivals or some unseen hand. The Executive Committee actually represent the combined wishes of every owner in the building including you. The by-laws are only there because owners have collectively agreed on them and the reason they have agreed on these fairly restrictive ones is so that the apartment block doesn’t turn into a 24/7 building site (because renovations spread like a virus).
Seriously, one of the most prestigious blocks in this city was turned into a virtual building site with not restrictions on noise, mess or disruprion for about two years because a greedy real estate agent got himself elected on to the committee, wiped out all restrictions on renovations and made a fortune encouraging owners to amalgamate. Without the by-laws in place, the other residents who had spent a fortune on the place could do nothing.
So take a step back and ask yourself how unreasonable is it for your neighbours to want some peace and quiet at weekends, early in the morning and later at night (as you will too when your renos are done).
As to what rights they have – they aren’t contradictory to Fair Trading rules (whatever they are)- they are on top of them. If you breach the by-laws, not only will you be subject to Notices to Comply, orders to stop work and possible fines, you will suddenly find that your builders’ access to parking and lifts has disappeared and your EC could also be raising objections at local council.
The by-laws may well be unreasonable but the time to challenge them isn’t a couple of weeks before you want to do work out of hours, it’s at an AGM. The rules are there for owners and agreed by owners. And if the majority of owners agree with you, then they’ll be changed. If they don’t that you have to livve with that.
Seriously, the best plan for all concerned – and for your future harmonious living in this community – is to find ways of getting this done with minimal disruption to your neighbours, rather than asking how someone can breach the by-laws and get away with it.
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You can always raise these issues yourself with Fair Trading and ask them to issue Notices to Comply. Or make sure the complaints are on the agenda of the next EC meeting … or get your new, user-friendly strata manager to issue the NTCs.
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@KaterinaC said:
Great, clear advice, thanks Jimmy T – maybe you could come to the next EC 😉I have enough trouble with my EC – life’s too short … and so am I.
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@basjan27 said:
Is there any more prescribed process? For example, must the Secretary (or SM or EC) acknowledge the receipt of the requisition within a certain time frame, notice the meeting with a time frame, and hold the meeting within a timeframe?
Otherwise, couldn’t the requisition be postponed indefinitely?
The answers are no, no ,no and no. And yes.
There is nothing more than the ‘practicable’ ruling but then any EC that deliberately delays a meeting where there performance is going to come under scrutiny, and doesn’t provide a valid reason for doing so, is merely giving ammunition to their opponents.
And there are valid reasons – like the chair being on holiday or the usual venue not being available but there is a limit and they’d be foolish to stretch that too far.
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A general meeting can only discuss the items on the agenda. The element of surprise will come when they realise you have gazumped their proxies – a new proxy automatically cancels any previous ones.
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It’s usually up to the chairman (or woman). My building’s chair prides himself on getting AGMs over and done with quickly. People seem to like not having to listen to endless discussions so who am I to criticise? Other people see AGMs as the one chance that owners have to express an opinion and ask questions – which would be my idea of what they are designed for. However, there are people who do and say nothing all year but turn up at AGMs to vent their fury for problems (that they often haven’t reported) not having been fixed.
The Act seems contradictory on who gets to chair the meeting but I am told that the Strata Manger is empowered to do so when the chair is present but wishes to step down temporarily (often for the very good reason that he or she has a proposal that they want to argue for).
Some realise they just aren’t up to the task of controlling a large meeting – and that’s where a good set of standing orders comes in handy – stuff like people not being allowed to speak a second time until everyone who wants to speak has had their say.
I actually prefer meetings to be chaired by the strata manager because they are usually impartial, well-informed about strata law generally and across the items on the agenda. Better that than a know-all who takes every question as a personal affront and every discussion as a waste of time (because he or she has the votes to decide what’s going to happen, regardless).
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If you have the numbers (ie, 75 % of those voting in person or by proxy), at your EGM propose that all seats on the EC be declared vacant. Then a new election is declared at which point you can first, choose the number of seats on the EC, then elect people to those seats.
If you don’t have the numbers to vacate all the seats on the EC, you will have to persuade the sitting members to resign. It doesn’t sound like that’s going to happen. If that’s the case, you will have to wait until your next AGM (where a imple majority will decide the size of the EC and who is elected to it.
If you do go ahead with the EGM, the best way to get the proxy votes that you will almost certainly need and which are probably being held by the chair is to tell owners (directly, by mail or phone if need be) how much the value of their property is suffering under the current EC.
If at all possible, don’t get into personalities – nothing turns people off quicker than what seems like spiteful sniping. Get local Real Estate agents to tell you how much better property prices and rents would be if the building was being managed properly. The more specific improvements you can mention, the more likely you are to convince people.
The day before the AGM, make sure your supporters are all fully paid up on their levies (or their votes won’t count) and be prepared to challenge the incumbents on that and the validity of their proxy votes if need be.
Best of luck … and be careful what you wish for.
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There are no “standing orders” as such for strata meetings but you can adopt any appropriate set of rules as the basis for your meeting procedure. This website Master of Meetings suggests a few options as alternatives to the American meetings ‘bible” Roberts Rules.
Either way, you would have to adopt whichever rules you wanted – provided they didn’t run contrary to the Strata Act basics – by a majority vote at your next AGM.
I wonder if Strata Community Australia has a handbook for meetings. In any case, you and the other “newbies” should log into their free online executive committee training programme HERE.
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@Mike said:
What about the use of common property parking spaces by members of the general public, i.e. who are not residents, lot owners or their visitors …Three words, Mike: pop-up bollards. Give residents identical keys so that only their genuine visitors can access the spaces.
Either that or a sign saying “Warning: cars parked here without permission have been vandalised in the recent past. Park illegally at your own risk.”
Not sure if that’s strictly legal … but it’s fun.
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