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I wonder if the local Fire Brigade might have a view on this.
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I want the allocation of the received money to go back in the same amounts as they were borrowed, but the strata manager is making claims that this goes against regulation.
This (below) is the relevant section of that Act. It’s a very loose piece of legislation so I would be interested to hear your SM explain how a decision to refund the money in the amounts it was drawn goes against the regs.
76 Use of administrative fund or capital works fund for purposes of other fund(1) This section applies if the owners corporation of a strata scheme comprising more than 2 lots—
(a) transfers money from the administrative fund or capital works fund to the other fund, or
(b) pays money from the administrative fund or capital works fund for expenditure that should have been paid from the other fund.
(2) The owners corporation must, within 3 months of the transfer or payment, determine, by resolution at a general meeting—
(a) whether the money, or part of the money, should be reimbursed to the fund from which it was transferred or paid, and
(b) if the owners corporation determines that part or all of the money should be reimbursed—the amount to be—
(i) transferred from the administrative fund or capital works fund to the fund from which the transfer or payment was made, or
(ii) levied as a contribution to the fund from which the transfer or payment was made.
(3) Section 81(3) and (5) apply to a contribution determined under subsection (2)(b)(ii).
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About to have our next AGM and will not be able to get through all our approved agenda items because we basically ran out of money.
Not sure what this means. Did you run out of money needed to action the items approved at the last AGM?
One of the standard agenda items is to approve the minutes of the last AGM as true and correct. Can we do this given we have not actioned all approved agenda items before the upcoming AGM?
The approval of the agenda items is a statement of intent. The fact that you ran out of money doesn’t affect the fact that you made the decisions. The minutes should stand unless they report something that wasn’t discussed or agreed.
Meanwhile, add those missed items to the new agenda and ask that the budget be adjusted to accommodate them.
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It is going to cost a LOT more than $10,000 per unit. The apartment block has to be surveyed, legal papers drafted and meetings held and resolutions voted upon.
Surely that would depend on the number of units in the building, no?
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I presume if I go to NCAT it will be argued it was approved by the majority and the committee are not allowed to go against the wishes of the majority.
In short, strata law supersedes the majority vote and there is a little-used section of NSW Strata Law (S232[2]) that can, theoretically, get NCAT to compel OCs to enforce their by-laws.
How useful this is, is debatable as the Tribunal seems to have a lot of discretion over how far they go on this and other matters of strata law.
I would say, it would come down to the seriousness or other wise of the leeway that other owners asr given in breaching by-laws and the selectivity of applying that leeway.
For instance, if a privileged group is allowed to breach by-laws in a way that seriously affects the peaceful enjoyment by other residents of their homes – eg wild parties all weekend, every weekend – you might have a case. Or if a select few have been allowed to annex common property and absorb it into their lots, that could form the basis of a case too.
But if it was something like parking a stroller or bike under a stairway, against the use of common property rules but where it’s not in anyone’s way, then your case might be thrown out.
However, if you consider the accumulated benefits for a limited number of people add up to something significant, you could apply for mediation at Fair Trading which would at least put them on notice – and make you very unpopular with the chosen few.
Or you could propose a motion to your next AGM that the strata committee identifies which by-laws it is not prepared to enforce and amends them accordingly. Your accompanying notes would then give you an opportunity to at least list the various breaches that have been allowed to go through to the keeper.
And don’t worry too much about defamation – as long as you aren’t deliberately dishonest and personally abusive, it has been well established that there is a lot of leeway in the cut and thrust of strata scheme discourse.
Section 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.
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Does this Motion need to be resolved first, and THEN another EGM is needed to be held to hold the election, or can the “Motion to hold the election AND the actual election be held all in one meeting?
I may be wrong but I believe that if you call for nominations for the committee in the original email then you can do it in one shot.
The motion process would be
- Propose a new election,
- Call for nominations
- Conduct election.
Can’t see any problem with that but others may disagree.
Jimmy
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And you can’t charge the owner for the OC to perform a function of the OC. Well; you can and if the owner is silly enough to pay it then their bad.
What happens if the Committee refuses to pay and the owners declines to do so too? No by-law, no progress, no permission to get work done. Most people would just pay, wouldn’t they? And why should other owners pay a cent for something that only benefits one owner?
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I have cleaned out the email folder so you can post away to your heart’s content. Thanks for the heads-up. Sadly though there is no PM evident so please repost here. Thanks.
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In NSW, a by-law requires approval by 75 per cent of the unit entitlements of owners voting in person, by proxy or by other valid means. NB: Not all owners – just those voting.
Your agenda should note which motions will require a special resolution, and special resolutions must be calculated by unit entitlements.
By the way, any owner can ask for any motion to be calculated by a “poll” vote (unit entitlements), during the discussion or immediately after a show of hands.
Other states have different methods of calculating special resolutions and different criteria for passing by-laws..
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As we say in this week’s podcast, if some of the dodgier strata managers applied as much energy and ingenuity to their job as they do to finding ways to squeeze more money out of their clients, a lot of apartment owners would be a lot happier.
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How is this possible – it is rewarding lies.
The people who viewed the document could have made a fuss but the issue was so personally toxic and the participants so belligerent, it wasn’t worth making a fuss. There was a relatively minor payout involved. Small war, not many dead. There are no StrataKops.
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Was the special levy a bluff?
Wouldn’t be the first time a spurious threat of a special levy has been used to deter owners from taking legal action.
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I would say probably not. Property insurances like landlord insurance generally cover the consequences of events rather than defects.
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