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The strata manager is employed by the Owners Corporation and answerable to the Executive Committee and my understanding is that generally speaking there is no confidentiality within those bodies. That means, for instance, if an owner is in a legal dispute with the OC or EC, they can demand to see all correspondence.
However, good strata managers will use their discretion as much as they are able and will treat some issues in confidence. However, there may come a point where they are privy to information that they simply can't keep to themselves and still do their jobs properly, especially if issues of professional liability are involved.
So I would err on the side of caution and assume there is no confidentiality in correspondence about the strata plan, regardless of what you put on the email. The strata manager's legal responsibility is to service the Owners Corporation, not individual owners.
You can ask them for discretion but I don't think you have any legal comeback if they pass the information on to the executive committee.
Perhaops one of our strata manager mebers can expand on that.
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In cases where you can show that it's a common property fault, then the OC should pay for the damage (not just the excess).
The question of the security gate is a little trickier. If it says in your by-laws that the OC takes responsibility for making the carpark or building secure, then you have a claim.
You may still have a claim even if it doesn't say that but it might be harder to prove. For instance, if the Executive Committee had known the gate was insecure and had made a decision to do nothing about it, I reckon you would have a strong claim. But if your by-laws say that vehicles and goods are stored at owners own risk, then you're up against it.
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BB is right although retrospective motions can work if they put things right on paper (ie, maintenance of changes to common property become the responsibility of the current and future lot owners, provided they don't transgress other by-laws).
But they shouldn't be used to rubber-stamp common property land grabs or by-law breaches. That's one of the reasons that enforcement of by-laws should be made compulsory in this state … so that the controlling cliques can't pick and choose what to enforce or who should get away with what.
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The website that johnkerr referred to (and I removed)had a couple of those 'rainwater' heads. Do they work well with restricted flow? I have to say that's on my Santa renovation list.
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The simplest solution is to permanently lease the land to her at a rate that recognises the increased value to her apartment from having a parking space as well as an estimate of what the increased levies for her lot would be if they were re-calculated.
The contract would be drawn up in such away as it was permanent and attached to the title of the unit with the amount of the lease rising according to either CPI or the percentage increase in levies for the whole building.
Then reduce the amount payable over the first few months or years to reflect the cost of the work done at the owner's expense.
That way you can set conditions for the use of the parking space that mean any problems that might arise in the future (such as trucks parking there or that sudden appearance of a car port) can be easily dealt with because it is still, essentially, common property. And you don't have to go through the hassle of re-setting the unit entitlements.
I'm sure there are other ways of handling this effectively but, on principle, you shouldn't be giving any common property away just because no one is using it.
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Basically, you need to get a surveyor into your apartment to itemise every non structural defect that needs to be rectified in your lot. You then need to make a claim against the developer and explain that you are aware that recent changes in the law mean they can't pass the buck to the builder.
You also need to ask your Executive Committee what they are doing about non-structural defects in the short term and structural defects in general. This is very important because if there are defects in common property that aren't attended to, it will affect the value of your unit just as much as if they defects were in your lot alone.
Don't let the EC pass the buck to the developer/insurer/builder. They represent the Owners Coprporation and the OC has an absolute legal responsibility to maintain and repair common property regardless of who ultimately foots the bill.
If you don't get anywhere in either of this areas, talk to a specialist strata lawyer about what your next options are.
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Thanks Whale.
Just off the plane from NZ and couldn't have put it better myself.
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bpositive said:
so this means if you do not have exclusive use of common property you are not a caretaker?
Nope. The opposite of the definition “a caretaker is a person who is entitled to exclusive possession (whether or not jointly with another person or other persons) of a lot or common property and assists in exercising any one or more of the following functions of the owners corporation …” is not that someone who doesn’t have exclusive use of CP can’t be a caretaker. For instance, a building manager may be considered a caretaker under the Act, even though they don’t own a property in the building. Is an on-site manager someone who lives on-site or is just there during working hours? And is an on-site manager who lives in the block but is only available during office hours any different from one who lives in another suburb?
This is what Fair Trading says HERE:
Caretakers and building managers
Caretakers … do not have the same delegated functions as a licensed strata managing agent.
Caretakers may operate as letting agents within the building and are often referred to as the building manager. They may assist the owners corporation in:
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the management of common property
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controlling the use of common property by tradespersons and other non-residents
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the maintenance and repair of common property.
Caretakers may not enforce by-laws or carry out other similar functions of the owners corporation.
A person is not a caretaker if they exercise those functions on a voluntary or casual basis or as a member of the executive committee.
Protection of strata owners in relation to caretaker contracts under the Strata Schemes Management Act also apply to anyone carrying out the role of an on-site caretaker even if they use a different job title such as a ‘building manager or ‘resident manager’.
Understandably, there is a lot of confusion about this, not least because of the fudging of duties between building managers, on-site managers, strata managers and executive committee volunteers (and those who do some work voluntarily and other work that they are paid for … which is how this discussion got started).
This is an area of the law that Fair Trading really needs to clear up. They need to define the roles, the rights and the responsibilities and basically say you can’t call yourself one thing if you are, to all intents and purposes, another.
There is so much confusion in Strataland about this. Whenever I get postings that says “I got a letter from Strata …” I have to ask what they mean by “Strata” becasue it could be any of the above as well as the EC secretary, the rental manager or even the developer.
A little clarity would not go amiss.
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Gilgal1 said:
I'm also a little uneasy about what appears to be an outright bid from a company for work…. is that really the purpose of this forum?
I'm a bit uneasy too, Gilgal. The purpose of this forum is to share information. My view is if people have a problem with termites, who am I to deny them the link that MIGHT offer a solution.
If it's any consolation, I get several direct pitches a week from businesses trying to get free advertising, that never see the light of day. However, if a business offers a genuine solution to a problem and their bona fides are that they are active in the relevant field, I'm going to give them space (but not necessarily my endorsement).
The most obvious try-on recently was from a timber flooring firm that sent an answer to the question “What do I need to know about timber floors” before they sent the Dorothy Dixer question. Cretins!
But any time you think this website is too close to becoming an advertorial, let me know.
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Hi Vivienne
This is a tricky one but I would be guided by the recent Memorandum of 'who is responsible for what' issued by the LPI (formerly Lands department). Bear in mind, this isn't the law unless you have adopted it as a by-law, but it is a good indication of what the current thinking is on this.
2.17 Plumbing (includes bathroom, kitchen and laundry) – OC responsibility
i. Water leaking through tiles or from one lot and affecting another lot or common property.2.18 Plumbing (includes bathroom, kitchen and laundry) – Owners responsibility
j. Water leaking from a bath or shower and not affecting another lot.
k. Water leaking from shower, sink, laundry tub, bath or hand basin taps.
l. Water leaking through tiles and not affecting another lot.
m. Damage to a lot caused by any water leak mentioned above, as a result of the problem itself.Note, it doesn't say where the tiles are, just where the effect of leaking tiles shows up.
Now, your by-laws may be different and this is not law, per se, but this memorandum is based on existing laws, expert opinion and case studies so it does carry some weight in the absence of any other clear definitions of who's responsible.
You can download the full Memorandum HERE
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Aquarian said:
If I can't get the OC to understand its responsibilities I will have to take legal action which unfortunately for all concerned will make it a much bigger matter.
Let's make it easy for them. You explain that they are in breach of their legal duty under strata law. Also, by ignoring legal advice, they are now straying into an area of culpable negligence (or whatever the legal term is) which means that they may not only be liable as an EC (which is probably insured) but as individuals (which probably isn't).
Your options are to pursue this through Fair Trading and the CTTT at the end of which – having spent a bit of money defending the case – they will be ordered to undertake the repairs.
Or you could sue them to undertake the repairs and damages for distress and all costs throught the Supreme Court (which WILL consider the case if they believe damages may be appropriate) and they will still have to fix it.
There are plenty of precedents for OCs being told to get on with repairs regardless of the fact that insurers are dragging their heels. So that's their choices: The hard way (via the CTTT) or the really hard way (via the Supreme Court including claims for negligence) or the easy way.
The easy way is this:
The OC employs building consultants to arrange for three quotes for all the repairs required. The EC then chooses the best quote and raises the finance through someone like Lannock (who are sponsors of this website) or Strata Finance (who aren't) and get on with the work. Then when the insurers quibble about the costs etc, the OC can say we got independent assessments, this is what it cost us, now give us the money (including the costs of the consultants and the loans).
If I were you I'd get a lawyer to prepare a letter outlining those options (and anything else they can think of) and giving the EC 28 days to arrange a general meeting so you can get moving on this. I'm sure other affected owners will chip in for the cost of that.
Failure to do so would trigger whichever course of action you prefer. They don't get to choose what they are liable for and what they aren't – it's clearly stated under the law. And now that they have ignored legal advice that they ARE responsible, they have really stepped in the poo.
Maybe the easiest thing to do is print this correspondence out and hand it to them.
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Matt
Not sure about your logic. What it’s saying is that just because you’re a member of the EC carrying out caretaker duties doesn’t mean you’re a caretaker (and subject to the bits of strata law that apply to caretakers).
A caretaker can be a member of the EC as long as they are properly nominated by an owner and elected by a majority of owners if an election is required.
A caretaker or building manager doesn't have to be an owner to vote at an AGM (or EGM) as they could be carrying proxies from owners (which is where the problems often begin). It's true that they still can't vote for anything from which they derive a financial benefit but they can influence the make-up of the Executive Committee. After that, it's down to the individuals concerned.
For my money, caretakers and building manager shouldn't be on the committee but they should be present at EC meetings to answer questions and advise. But as far as I can telll, there is no restriction on them being on the EC.
But getting back to the definition, this is what the law says:
40A Who is a caretaker?
(1) A caretaker is a person who is entitled to exclusive possession (whether or not jointly with another person or other persons) of a lot or common property and assists in exercising any one or more of the following functions of the owners corporation for the strata scheme concerned:(a) managing common property,
(b) controlling the use of common property by persons other than the owners and occupiers of lots,
(c) maintaining and repairing common property.
(2) However, a person is not a caretaker if the person exercises those functions only on a voluntary or casual basis or as a member of the executive committee.
(3) A person may be both a caretaker and an on-site residential property manager.
(4) For the purposes of this Act, a person is taken to be a caretaker for a strata scheme if the person meets the description of a caretaker set out in this section, regardless of whether the title given to the person’s position is caretaker, building manager, resident manager or any other title.
40BHow is a caretaker appointed?
(1) A caretaker is required to be appointed by an instrument in writing (a caretaker agreement) executed before or after the strata scheme commenced by the caretaker and:
(a) by the original owner, if executed before the strata scheme commenced, or
(b) under the authority of a resolution passed at a general meeting of the owners corporation of the strata scheme concerned, if executed after the strata scheme commenced.
(2) Unless it expires or otherwise ceases to have effect earlier, a caretaker agreement (including any additional term under any option to renew it) expires:
(a) at the conclusion of the first annual general meeting of the owners corporation, if the agreement was executed by the original owner, or
(b) when 10 years have expired after it commenced to authorise the caretaker to act under it, in any other case.
(3) The functions of a caretaker under a caretaker agreement may be transferred to another person only with the approval of the owners corporation. A person to whom those functions are transferred is taken to be appointed as a caretaker by the caretaker agreement.
(4) An owners corporation may terminate a caretaker agreement in accordance with its terms, and may approve a transfer of the functions of a caretaker, if authorised by a resolution at a general meeting of the owners corporation.
40CWith which functions of an owners corporation can a caretaker assist?
(1) A caretaker may, in accordance with the caretaker agreement appointing the caretaker, assist in exercising one or more of the functions of the owners corporation of managing and controlling the use of common property (otherwise than by the owners or occupiers of lots) and of maintaining and repairing common property.
(2) However, the owners corporation may continue to exercise all or any of those functions, subject to the caretaker agreement.
(3) A person is not a strata managing agent for the purposes of this or any other Act only because the person is a caretaker acting in accordance with a caretaker agreement.
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