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It sounds to me like you have four other owners in exactly the same pickle so it would be worth getting together with them to speak to a specialist strata lawyer. That aside, I think it will become a matter of getting the Owners Corporation – that's all the owners – to a position where they realise they are better off accepting the terms of the proposed by-laws than they would be rejecting them. Perhaps a small payment to the sinking fund to clear this up might be in order (with the threat of an expensive court case with no guaranteed outcome sitting on your other shoulder). How many units in the block, by the way?
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I'm going to pass the buck on this to any of our legal eagles who may be reading. Is there accepted practise or precedent on this?
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Your exclusive use by-law would include any restrictions that you and the unit owner agreed were reasonable – such as whether or not a barbecue was allowed, or restrictions on plant pots (or an obligation to maintain plants) etc etc. This would be there for future owners who might not respect the rest of the building's wishes as much as the current owner does.
If there is no agreement to establish an exclusive use by-law, then the area is subject to the same by-laws as any other area of common property but that doesn't mean necessarily that you can all take your deckchairs down there and start sunbaking.
In fact, you may find that your balconies are also common property for the sake of by-laws but obviously only accessible to the residents of the attached unit.
Sooner or later you are going to have to talk to a specialist strata lawyer who will tell you if an exclusive use by-law is even required and then help you draft one if it is.
There is also a complicating factor in a principle of law I've heard about recently where established and unchallenged use of an area like that is accepted as “ownership”. The details I have are hazy but if one of our lawyer readers could help, I'd love to know about it.
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Kerrie
This is what happens when an Executive Committee doesn't enforce its own rules and/or treats tenants like second-class citizens. Contact your landlord or estate immediately and demand that they either do something about this or give you a rent reduction for the duration of the work. 7 am may be a reasonable time to start on a building site or a free-standing home but it is definitely not OK in an apartment block. Any EC that's on-the ball would have made a more civilised starting time a condition of their approval of the work and access to common property for builders etc. You might also check the building's by-laws to see if they are being breached by this – again, take it to the landlord/agent. It's their responsibility to make sure you get what you've paid for.
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In the short term you need to get a specialist strata lawyer and/or contract lawyer to write to this guy and tell him he is in breach of his contract and that you will be seeking to cancel the contract and, perhaps, get compensation.
You also need your lawyer to be writing up new terms for any contract extension – and they will clearly delineate the duties expected of the managers as well as the fees they can charge and the terms under which they can be dismissed.
The organisation that looks after on-site managers is always complaining that I am unfair to their members and yet they no NOTHING about abuses like this.
Developers selling contracts to on-site managers (then forcing them past unsuspecting owners at their first AGM) is a form of corruption. It's just another way of putting more unit owners' money into developer pockets. Whether they are good, bad or indifferent, the first thing these managers have to do is get enough money to pay off their “investment” to the developers, then they have to charge you for their services. So you, the owners are paying twice for a service that could and should be provided by reasonable people at reasonable rates.
For the managers to then “flip” an extended contract to continue this legalised larceny for another 10 years is beyond a joke.
Maybe there's a way that your OC can buy the contract and the unit that goes with it then install the manager of your choice on your terms. Wow! That's such a reasonable and fair idea that it's almost sedition in strata terms. Has anyone ever done this? Is there any reason why it can't be done?
Meanwhile, it sounds like your current incumbent is on strike. Get rid of him but don't make another 10 years of one-sided contracts with no exit clauses the price you pay.
There is a new Federal contracts law that is supposed to stop one-sided and unfair 'unconscionable' contracts … does anyone know if this would apply to on-site management contracts.
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You certainly have a grievance but I can't say whether or not you have a case. All I can say is that your next call should be to a specialist strata lawyer who will give you the best advice on how to proceed.
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To anser your questions in order,
1. 51 percent approval is enough
2. The developer's vote is reducded to one third of his voting power until after he has sold 50 percent of the properties. He may have more votes by dint of owning more properties than those who oppose him but there is no casting vote per se in strata – and that includes the chair of the Executive Committee.
3. Generally yes, I think, unless something is moved as an valid amendment to something that's on the agenda
4. Yes, you do. Make sure you have the addresses of all owners including absentee investor owners before you do this – the agent could find a million and one ways of not letting you have them once he knows you are planning to sack him.
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If this is a common property fence and in need of repair or replacement, then probablythe OC should pay. But if this is an extension of the CP fence to benefit individual owners, a whole different set of issues come into play, such as who maintains the fence once its in place and who pays for its extension.
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Ah yes, but the cost of the contractors who laid waste to the garden, if not properly agreed to at an EC meeting, could be charged back to the EC members who went ahead and did this without authority. I’m not suggesting you pursue this but it might be a card you play when you tell them it’s time to back off and HELP you to pass an exclusive use by-law or, indeed, sell the space to you.
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Far be it for me to add fuel to the fire but if they had a clear instruction from the Owners to leave the garden alone and then later went ahead and ordered its destruction without holding a proper meeting, the question of personal liability might come into it.
Or you could let it ride and put it down to experience.
Or, at the next AGM, raise a motion for a special resolution allowing you to take over care of the garden again – now that everyone can see how they have destroyed it. At no cost or hassle to them, taking responsibility for your own OH&S, who’d vote against it (apart from the obvious)?If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
I don’t think the Executive Committee has such a right. This is what Fair Trading says on meetings:
Owners’ attendance
An owner or, where the owner is a corporation, the company nominee of the corporation can attend executive committee meetings but they cannot speak at the meeting unless the executive committee agrees by majority vote.
There’s nothing there about excluding owners from hearing issues.
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Shayne
Many of those safeguards are in place. ECs are bound by law to circulate agendas and minutes of their meetings. Owners can give their proxy to tenants and with a bit of effort you can oust them from the EC if you can garner enough support. Sounds like you need to chat to a specialist strata lawyer.
JimmyTIf you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.