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Can we just clarify that this is Queensland case law and is not necessarily applicable in NSW (if at all)? Or is it?
JimmyT
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On the question of who could provide this, I just googled “fire safety statement” and about half a dozen firms popped up. Get a quote before you commit
JimmyT
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I think the basic problem here in owners thinking “it doesn't cost them anything to get fixed” is the disconnect in owners' minds between the levies they pay and the payments the Owners Corporation makes.
In Struggler's example, the owners will end up paying for termite treatment anyway, since all the owners will either pay directly or through their administration and/or sinking funds.
However, there is a legal obligation on the Owners Corporations to maintain common property so a selfish owner could theoretically wait until everyone else has had their termites done (at their own expense) then demand that the OC attends to theirs.
Owners agreeing that they are taking responsibility for their own termites would have to be written into your by-laws for that situation to be avoided and would p[robably have to include a clause dictating how often termite inspections had to be done for it to be legal (not sure about this – do any lawyers have a view?)
I would have though this was a fairly critical issue because of the way termites can spread. But if, for instance, this was a case of rising damp in one unit or townhouse, the lot owners could reasonably demand that the OC attended to it at its and not their expense.
On the question of making their homes available for inspection, it can be a real pain but the OC has the right to demand entry for essential work to be done (not that you would want it to get to that point).
However, including in your by-laws agreement to impose a call-out fee when owners fail to make their properties available for inspection (after being offered two or three options) would soon sort that out.
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Some developers are real charmers, aren't they – unable to come to terms with the idea that once that have sold a property, it doesn't belong to them any more.
There's a section of the strata Act that I think might be relevant to you. It says:
(7AA) An original owner or a person connected with the original owner
may not cast a vote by means of a proxy or power of attorney given by another
owner of a lot in the strata scheme concerned if the proxy or power of
attorney was given pursuant to a term of the sale contract for the lot or
pursuant to another contract or arrangement that is ancillary to the sale
contract.(7AB) Any contract or arrangement referred to in subclause (7AA) is
unenforceable to the extent that it requires the giving of any such proxy or
power of attorney.So what you should be telling your neighbours is that there's no point in voting for this because it's illegal anyway. And as for suing for breach of contract – it's more likely that you'll collectively be able to sue for the return of Common Property to its rightful owners.
Moreover, there's a possibility that the new Federal laws on unconscionable contracts may apply here too.
Get together with a couple of other owners and hire a specialist strata lawyer to look at the details of the case. Then get them to send a letter to your developer explaining how the law forbids this kind of blackmail by contract. Also, have a motion to resume the common property added to the general meeting with the advice for the strata lawyer added as an annex to the motion so that everyone can see it.
Your developer needs to learn that they can't bully and blackmail owners with empty threats of legal action when they, more than likely, are the ones on the wrong side of the law. And your neighbours need to learn to stand up for their legal rights.
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Molly
You can't account for the emotional and psychological state of others. I occasionally get threatened with legal action (as a journalist and writer) and my response is invariably “bring it on”. They never do (touch wood). Having recently published a true crime book, trust me, it's the ones who don't threaten to sue that I'm worried about.
It's a shame that you've been driven to exclude yourself from the EC but not all strata owners are bad, just as there are many lawyers who are thoroughly decent people.
Strata disputes do get personal and nasty and it's usually the people who do nothing to help who are the first to complain when things go wrong. Strata law is a minefield but the owners who rant and rave the most are often those who either haven't even read the by-laws at all or who sit up all night reading and re-interpreting the Act, bending out of shape to fit their arguments, like fundamentalists in any religion.
However, if an owner is persitently threatening and abusive, there are remedies under civil law – like AVOs – although these days I would always recommend first seeking a mediation (provided free through Community Justice Centres) so that the aggrieved owner gets a chance to vent their frustration and the subject of their abuse can put their case AND explain how badly these attacks are affecting them.
By the way, if the CTTT fulfilled its charter properly, vexatious and frivilous complaints would have costs awarded against them,as the Act allows. Don't hold your breath waiting for that day to dawn.
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Yes. Absolutely!
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I think that's a given. What might be required is an EC decision to pursue debt collection if the bill was ignored.
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I don't think it's illegal, just seriously unrepresentative.
The solution is to get as much support as you can from other owners then at your next agm there will a compulsory item on the agenda where you have to decide how many people you want on your EC. I'd suggest 5 or three at a pinch – just make sure you have enough people prepared to stand. If the number of nominees is the same as or less than the number of places, you don't even need to have an election but you will need a simple majority to get the size of EC that you want.
Bear in mind that you have to be nominated by the owner of a different unit if both you and your husband want to stand.
Once you've done that, the fact that the other EC member has five units has no bearing on ERC meetings. It's one member, one vote, although obviously they have a huge influence if they want to take an issue back to a General Meeting (where all their votes count) or even elect their own EC.
But don't make this an attack on the multi-unit owner. It should be presented as a positive effort to get more involvement in the running of the building, especially from people who actually live there. A softly-softly process of getting people involved now will ensure smooth passage of these changes when the time comes.
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I wonder what happens when there is nothing in the Strata Management contract to appoint the strata manager to these default roles and the EC fails to elect office-bearers. OK, both situations are highly unlikely but – hey, this is strata we're talking about. Anything can and does happen.
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I would think that would fall well withing the remit of an Executive Committee. There's not special resolution required for that, that I can think of.
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It sounds as if you have done all that was required (and considerably more than most). You have written permission under the terms of the by-laws and it also sounds like you are an extremely considerate neighbour so you and your dog are fine.
It's a sad fact of strata life that there will always be someone who starts flailing accusing everyone else of all sorts of stuff when they can't get their way.
Some lawyers will nitpick and analyse fine print to the Nth degree, because that's what they're paid to do. It makes no difference to you whatsoever and they ought to be ashamed of themselves for casually causing you this distress.
Ignore this and be thankful you aren't on the EC and having to deal with Pigeon Lady on a daily basis.
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Kate
My understanding is that only members of the EC can demand an EC meeting be held and at least one-third of EC members (not owners) have to be in favour.
When it comes to Extraordinary General Meetings, at least one-quarter of owners (by unit entitlements) has to support a call for a general meeting.
An owner, could, theoretically, call a general meeting, sack the current EC and install another one more sympathetic to their cause(s). Actually, it's more than theoretical – I've seen it done.
But it would be easier for them to get the required third of the EC onside and do it that way. An individual owner can't demand either an EC meeting or an EGM.
The question of owners being unfinancial is a tricky one. They could, I'm thinking, get enough support to call an EGM and then not be able to vote at it (and, yes, I've seen that done too).
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Hmmm. There are three things here. One is that the Act says you have to give two week's notice if you are going to change the structure (whatever that means) of your lot. Then there are your by-laws and there's no telling what they say about renovations, when you are allowed to do them and whose approval you need for what. Read them and all will be revealed.
Finally, there's common courtesy. You won't be the first person in strata too have just gone ahead and done this but that doesn't make it OK. This work is going to be noisy and messy and that's going to affect many of your new neighbours to some extent. Struggler is right – you've gone ahead and done part of the work in good faith – no point crying over spilt milk. But now is not the time to get all feisty about this. Be a good neighbour explain your plans and ask the EC what you need to do to finish the job in a away that isn't going to upset them. They have no idea if you plan to knock out walls, block up widows or drill down to the next floor. A quiet word over a cup of tea will get everything back on an even keel.
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