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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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But any owner can attend a committee meeting to observe the meeting. They have no voice or vote.
Yup. I should have pointed that out. Like I said, strata is complicated enough without adding to it.
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If a committee holds a seat open for an inordinate amount of time, any owner might seek mediation then NCAT orders under Section 232 that the committee elect a candiate for the vacancy on the grounds that the OC will have established the number of members on the committee at the AGM and has failed to fulfill its responsibilities by not using its power to maintain that number.
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As far as standing down goes, neither the OC nor the committee can remove an owner or a committee member from exercising their rights to attend meetings and vote.
True for general meetings, not so for committee meetings. For the sake of clarity, in NSW members can be removed from the committee at a general meeting under Section 35 (1)(e). It used to require a special resolution, now it only needs a simple majority and the sacked owner may not rejoin the committee for another year.
35 Vacation of office of elected member of strata committee(1) An elected member of a strata committee vacates office as a member—
(e) if the owners corporation, by resolution at a general meeting, determines that the person’s office as a member is vacated,
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Just to be clear, venting into a roof space is probably illegal. Renovating a bathroom requires by-law approval if the floor has been re-tiled. Your strata committee is being very slow to act on this and if I was an owner and found out this had been allowed to slide, I would be taking the SC to NCAT for failure to fulfill its responsibilities, becasue this is going to cost the owners a lot of money to fix – something over which you will have little choice – if you don’t fix it now.
Get something on the AGM agenda to let prospective buyers know the apartment is non-compliant, if nothing else, that will get the cowboy owner to reconsider their decision not to seek by-laws.
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Your strata committee needs to talk to an experienced strata lawyer right now. You also need to put an item on the agenda for your AGM along the lines that “The owner of lot XXX be required to remove the unapproved changes to common property resulting from their renovations and restore common property to its previous state OR seek a by-law ensuring ongoing maintanance of the changes, as dictated by Section 108 of the Strata Schemes Management Act 2015.”
A second motion might read: That the strata committee inform the local council about unapproved changes to common property attached to lot XXX to establish whether they are in breach of building codes and development approvals.”
Now, that wording is just mine of the top of my head and a strata lawyer (not just an ordinary solicitor) will come up with something more pointed and effective,. The main this is you need to get these items on your agenda right now.
Once they are there, the will come up in a strata search and you will save youreselves a world of pain when a new owner fights to have these clearly illegal changes approved or removed (possibly under council orders) at the OC’s expense.
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Who’s responsibility is it to provide lot owners with the minutes of a SC Meeting? (I know that ultimately it is the OC responsibly, but surely the SM has some responsibility here?) What recourse can be had here?
You have answered your own question in your attachment. It is the responsibility of the owners corporation (via the strata committee) to distribute the minutes. And unless there is a provision stated in the strata management agreement to do so for them, it is not the SM’s problem or responsibility so chasing them through Fair Trading is, as you discovered, a waste of time and energy.
What you can do is pursue the SC through Fair Trading and NCAT via section 232(2) for failure to fulfill their duties (which might also apply if there is an agreement with the strata managers and they haven’t enforced it), or you can go nuclear and apply for the compulsory appointment of a strata manager on the grounds that the scheme is not operating as required by law.
The first move may be enough to scare them into action. The second option is a “be careful what you wish for” move where you may end up worse off than you are already.
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I have just noticed that this was posted back in March and there was both an AGM and an NCAT hearing in the offing. What happened? I understand that posting on the Forum is not your highest priority but if you ask Flatchatters for advice – which was given freely and in great detail – you could at least let us know the final score.
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I don’t recall your original headline but I spend half my time here fixing headlines that are way too general to be of any use; things like “strata problem” or “manager issues” – which cover about 90 percent of the issues raised here.
I have no idea what was in your response to Strata Answers but you can always repost it.
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There is no legally defined process involved in this unless the member resigns from the committee in the hope that they will be re-elected eventually, or if they are sacked by the owners by a simple majority at a general meeting. If they resigned and then wanted to act as a proxy, that would have to be approved at each meeting by the other members of the committee. If they are sacked by the owners, then they can’t be on the committee for at least s year.
But why would you let this person near the committee if they have already been suspended (albeit voluntarily)?
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So approval of an agenda item is intent and not implementation? If we have a relaxed EC and intent is all that’s ever realised why have motions for action if there is no penalty for follow-through?
You have a record of what was intended and not actioned. To avoid the constant roll-over, propose a motion to the agenda that asks the strata committee chair and treasurer to outline their plan for fulfilling the commitments made at the last AGM – including necessary amendments to the budget – or explain why they will not be done despite their being the expressed wishes of the majority of owners.
The penalty for lack of follow-through is that you elect different people on to your committee who will get things done.
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