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JimmyT said:
Those proxies are valid whether or not the owner has been notified of the meeting.
Please read the posts answering your questions before you send off your next question.
A proxy can't be signed but not 'given'. If it's an ‘open’ proxy form, correctly signed and dated, then it has been 'given' because the person holding it just needs to fill in their name.
A verbal proxy “isn't worth the paper it's printed on”.
A valid proxy operates until:
- the time stipulated on it runs out
- or for a year or for two AGMs (whichever is the greater)
- or if another later valid proxy is signed
- or the proxy giver turns up at the meeting and votes.
If you want to be certain that this person's proxy has been correctly assigned, take them a proxy form, explain the facts to them, get them to sign it and (very important) date it. The new proxy will supersede any previous version.
Your question about how a proxy holder or their agent can make an informed decision without proper notification is moot. It happens all the time, not least because a lot of owners and their proxy holders don’t even read agendas.
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A general meeting can only discuss items on the agenda. Amendments to those motions have to be relevant to the original motions.
Proxies are normally provided for a period of time up to a maximum of one year (which is assumed if there is no restriction stated in the proxy). Those proxies are valid whether or not the owner has been notified of the meeting.
The simplest way to resolve this is for the agent to go and get this lady’s proxy. Even if she already signed one over to the Strata Manager, any new one – as long as it’s valid – will supersede all previous ones.
I wouldn’t get too hung up on who received what and when. No CTTT adjudicator in their right mind is going to declare a meeting invalid because one person says they didn’t receive due notice.
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Peter's right, you can only correct minutes of a general meeting at another general meeting and for most strata blocks that's the next AGM.
However, if you think the decisions of a meeting have been seriously misrepresented in the minutes, then you can have this noted at an Executive Committee meeting – it will then at least be on the record – and then, if need be, call an Extraordinary General Meeting, to correct them (and sack the person responsible, perhaps?).
For instance, if the minutes were issued with a different budget from what was agreed at the AGM, becasue the secretary and chair wanted to spend less or more money than the rest of the owners, then you would call an EGM to correc t them.
However, if there has been a genuine mistake, ands there is a general consesus that that's the case, you can ask for the minutes to be reissued to correct this and that can be done but you wouldn't do this over a trivial matter since it is quite an expensive exercise.
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I don't think the “or the chair” option is on the standard form as issued by Fair Trading nor should it be (although it's not illegal). I simply encourages 'blind' voting which is generally a bad thing.
To get back to Muffin's point. You can't assume that a proxy given to one person can then be transferred to another proxy – unless perhaps you had “or their proxy” on the form as Peter C describes.
In any case, you don't have that so it's a question of getting the original proxies reissued in the name of the person who will actually be at the meeting. It sounds like it's going to be quite controversial meeting so all this paperwork has to be watertight and a proxy of a proxy certainly isn't that.
New proxy forms properly signed and dated supersede any previous proxies issued.
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What Mr Strata says is probably correct but it involves a long and involved process that would require a reassignment of Unit Entitlements for the whole building which is a long and involved process in itself.
However, it would seem time is of the essence since this chunk of common property is deteriorating and the Owners Corporation has an obligation to repair it (and no money with which to do so).
A long-term transferable lease of, say 30 years, linked to CPI, would provide the necessary security for potential purchasers.
I would be talking to Lannocks or Strata Finance about a loan to allow you to get the work done, and to the owners of the lots about leasing the space. That way it’s possible to get this work done quickly – which is the OC’s legal responsibility – without having to impose a special levy.
If all owners involved want to buy the balconies, then they’d have to share the cost of the new surveys and legals etc etc and, as the prvious posters have said, the cost of the repairs could be factored into the price.
By the way the structure of these balconies would still be common property and it’s not always a good idea to pass their repair and maintenance on to individual owners. As you’ll see from other posts to this Forum, some owners just don’t bother with maintenance until it’s too late and the damage is done.
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As long as you use the correct form (which you can download from the Essential Links page, if the strata managers don't send one out), you can nominate anyone you want to speak and vote on your behalf.
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I think, in fact, all it requires is a special resolution (75 percent) but you have to make sure that no one is being unfairly disadvantaged ( I think the term is “defrauding the minority”). In other words, if there is a benefit to some owners in buying common property, a fair amount has to flow back to all owners, even if the majority agrees otherwise. That’s why the Supreme Court established the formula described above.
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One thing looking into is the original decision that you say your previous Strata Manager didn’t follow through. If you’re in luck, It may have an approval to spend an appropriate amount attached.
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There's a principle around strata executive committee meetings that any owner can attend and electronic meetings wouldn't allow that to happen. Also, there are regulations about agendas and minutes.
However, in practice, a lot of ECs will have mini eMeetings to allow them to get on with the day-to-day stuff and save the big stuff for formal, open meetings.
As a rule of thumb, if an issue needs to be discussed, if someone is possibly going to object, especially take a strong contrary point of view, or challenge the decisions after the matter, then have a meeting. But if the issue has already been discussed and agreed and you just quickly want to, say, send out a letter following up a decision made at a previous meeting, then just do it electronically.
This approach may not be strictly legal – but it works for a lot of committees.
The question of spending is quite complicated and depends , among other things, on the size of your building (Blocks of over 100 units have slightly different rules.)
Apart from bona fide emergency work, basically all proposed spending should have been budgeted for at an AGM or an EGM. If you are planning to spend more than 10 percent on top of what was budgeted for a specific item, you need to have another general meeting. If it's payment for legal advice above a fairly low threshold, it has to be agreed at a general meeting.
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Ok, what I have been told is, to take a hypothetical example, if the EC has been told there is a potential problem with a wall and they decide not to do anything about it and it falls down, they are probably covered by their insurers because they have made a genuine mistake in not attending to it soon enough.
However, if a builder or surveyor tells them there's a problem with the wall and it's likely to fall down, but they decide not to do anything about it and it falls down (and hurts someone) then they have ignored reliable advice. That's not a mistake, it's negligence and many insurance policies would be invalidated by that.
In this case, the Strata manger has told them several times that the carpet is potentially dangerous. They have chosen to ignore that advice so they could be in trouble if someone falls and injures themselves and the insurer says, “look at the minutes for the last three AGMs – you ignored the advice given by a reliable professional. We're not paying the bill, you can.”
That's my understanding but if I'm wrong I'd be glad for a strata manager, lawyer or insurer to put me right.
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Hyacith
I'm guessing the caropet isn't the only thing that's been allowed to deteriorate and it sounds like you need World War 3. It also sounds like the Strata Manager is sympathetic so you could ask to have a copy of the strata roll, then write to every owner and tell them how the value of their property is being harmed by the penny-pinchers in your building. A couple of quotes from local real estate agents about how much the lack of basic maintenance is harming values would go a long way to helping.
Also, your insurances may also not cover any accidents in the building if it can be shown thet the EC was warned about this – I think the phrase is “constructive negligence” or something like that – which means EC members could be personally liable if someone slips and breaks their leg (or worse).
This is a typical story in an older building run by rusted-on residents who have no interest in the value of their property (because they have no intention of selling) and are trying to keep levies down because their incomes aren't rising to meet them.
It's a shame but someone has to bite the bullet. If they are on pesnions, there will be untapped equity in their homes that they could use to get loans but that's no use if they are elderly and would rather hand their apartment on to their sons and daughters unencumbered than fulfill their responsibilities to the community in which they live.
Have a chat with the strata manager about the best way to push this forward. Most investor-owners will realise the benefit of keeping the whole building in trim – it's good for values and for rents. But doing nothing is not an option – and that's a message you need to get to all the owners. If it does start WW3, so be it – just make sure you win.
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This would be my strategy:
1. Sit down and work out exactly what it is that you want your Strata managers to do should they be given the running of the building. Ask them how much this will cost.
2. Hold an EGM to empower the Strata manager to take over the running of the building, explaining to everyone what the additional cost will be. The one-person EC will then be retained as an advisory link with the strata manager.
3. Explain to the other owners that if they don't accept this plan, they will end up with the strata manager being appointed by the CTTT anyway, because someone has to run the building – the only difference is that they are much harder to get rid of if they are a statutory appointment.
4. Tell the strata manager that this is on a trial basis and that renewal of their contract will depend on how they perform.
5. Let them get on with it.
As far as the retrospective bill for repairs goes, give them the number of Fair Trading (13 32 20) and let them pursue it through that avenue. This is a try-on and they ought to be ashamed of themselves.
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While you're waiting for a definitive legal ruling, have a look HERE.
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Even if you “sold” them, they would probably still be considered common property in regard to structural maintenance (and you wouldn't want it any other way). However you could write into the leases that the lot owners would have to pay for any damage done, for instance, to the seal and restrict them from doing anything to the space that would interfere with the integrity of the structure.
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If you look at Whale's response, above, you'll see that the SM is labouring under a common misapprehension. Because the Air-Con was installed by a previous owner without permission doesn't mean that you have to apply to have it on common property – it means that it must now be considered common property and it's up to the OC to maintain it (regardless of who damaged it). The OC at the time it was installed had the opportunity to formalise the arrangement or have it removed. That they didn't do so isn't your fault and they have inherited the issue from the previous OCs.
The other misconception troubling your SM is that the OC doesn't have responsibilty for the actions of their contractors. Why then would they have OH&S insurance, for instance?
All that said, you are now facing a $70 charge if you want to take this to Fair Trading for mediation (an obligatory first step towards a claim at the CTTT. And you might have a smartypants in your EC say, well, if this is common property, let's remove it.
Frankly, I'd be using this as a opportunity to formalise the air-con issue. They can pay the repair bill and for a special resolution by-law to be drawn up whereby you agree to take over the maintenance of the air-con unit in the future. But even if you were responsible for the unit now, they would still be liable for the repairs.
My suggestion – see if you can arrange a free mediation with someone from the Institute of Strata Titles Management who is more across the strata legislation than your guy is. I don't even know if ISTM do mediations but they should.
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