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Can Mr X insist that by a certain date (say 6 mths from now), he will draw a line. Whatever was found and handed in to him by that date will constitute the scheme’s library. Anything found by anyone after that date, even if it’s indisputably a true record, will not be considered in any decision making of the SC or OC.
A record is a record. Imagine how that cut-off would be greeted in a court of law? All he can really do is ask people to hunt out their various bits and bobs and he should suggest a reward, not threaten an unenforceable undertaking not accept records that they have forgotten about and no longer care about anyway.
As for payment, if he is asking for payment as a committee member, that’s not acceptable. If he is asking as an individual providing service to the scheme then he can’t participate in the relevant discussion.
Bad idea all round.
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But the act does not confer decision making power to the strata manager.
The Act says that the strata scheme can delegate all or any of the powers of the office-bearers to the strata manager. This is a standard “back-up” position. However, a strata scheme can – if they’re not engaged or unaware- vote to delegate all powers to the strata manager and the only way to rescind that is by holding another general meeting.
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I write a letter to the SC asking the Secretary to clarify whether he has assumed all the responsibilities associated with the role, or whether the manager still has legal responsibilities as a result of the delegated authority in the management agreement.
I think it’s a good tactic but you have to be quite specific becasue the duties and reponsiblities of the starta manager and strata secretary overlap. E.g. “In this scheme where a strata secretary has been elected and is in situ, who has prime responsibly for [whatever you think isn’t being done] in the first instance, under normal circumstances.”
I would add that condition because there are emergency situations where, under a normal back-up delegation of powers, the strata manager can to step in where the office-bearers are not able to function or are absent for whatever reason.
For instance, if the secretary (for example) turned out to be unfinancial or just not around, the strata manager could call any meetings required to clarify the situation. In you scheme the strata manager thought they would be running the show with their decisions rubber-stamped by the committee and that is far from standard practice.
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If it is not responded to, even when half the committee have pecuniary interests, the strata mgr or whoever is chairing the meeting goes on to the next agenda item.
Then you ask it to be recorded that you believe certain committee members do indeed have conflicts of interest and remind them that there is a maximum fine of $1100 for failure to notify the committee. This will come as a shock to a lot of committee members who probably don’t even realise the the laws has changed.
And if they still refuse to self-declare, go to Fair Trading and NCAT to seek penalties.
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To be fair, if there is no by-law or rule, then the committee has no say on who can move in or out at any time. And in that situation, you may find that lifts and driveways are clogged with people moving in and out every weekend, when the majority of reident just want to enjoy their homes. As you say, common sense and courtesy take a back seat in our “me first” culture.
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To be fair to strata managers, in a lot of schemes the owners either aren’t interested or lack the expertise to run their own show. The problem is when the strata managers get locked in a corporate culture where they expect to be left alone to make all the decisions and don’t know how to function any other way (as I have witnessed at close quarters recently).
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Why is there a need to have such a motion in the first place.
From the original post, it would seem that committee has not been forthcoming with information. A motion to a general meeting would compel them to do so. And don’t forget that committee members can be remove by a simple majority vote at a general meeting if they fail to compluy.
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if there is a discussion about STRA at a committee meeting anyone who is operating a STRA rental should exit the meeting entirely during that discussion,
I would think so … seems like the definition of a conflict of interest, although I can see situations that might benefit from a STRA operator being there to answer questions. However, even then they can’t vote.
does the Manager have to ensure that the authority granted as Secretary is performed to the letter of the law?
The standard strata manager agreement excuses them from any responsibility for errors or just bad decisions that they make where they should have known better, so it’s hard to know how you would enforce that except by raising a complaint at Fair Trading and seeking their enforced removal/replacement at NCAT. Removal and replacement by a compulsory manager seems like the only sanction – apart from getting rid of them at the first opportunity when their contract runs out.
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To my knowledge unless you are living in a prison no.. You can move whenever you want.
See my previous comment about by-laws. If there is a valid by-law in place, you can’t just move in or out when it suits you (and absolutely no one else in the building). OK, you may have to take half a day off work if you do it midweek , but then most of your neighbours will be out so it causes minimal disruption.
A community with rules isn’t a prison – it’s quite liberating, actually.
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I had hoped someone else would have jumped in on this, but here goes. I think you are fighting the wrong battles with the wrong people.
Firstly, this doesn’t sound like an insurance issue to me. It’s a failure of common property which is usually not covered by insurance.
So you have two parallel routes you might take.
You could seek orders at NCAT for your owners corporation to fix the problem – forget all the personal stuff. They have a responsibility under the law that’s as clear as day. You will have to go to mediation first and if they then say they’ll do it, don’t leave without a written undertaking to get it done in a certain time frame.
Then you could take a civil case against the OC for the loss of rent.
But before you do any of that you really should consider consulting an experienced strata lawyer.
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It just goes to show that no good deed goes unpunished.
One of my favourite quotes – but what’s the good deed in this scenario/
And for the record, it’s a courtesy to let people know when you’ll be blocking the driveway and clogging up the lift so that they can, for instance, avoid having two moves in at the same time.
We have a by-law that says you can’t move in or out on the weekend – I’ve seen a young woman screaming dog’s abuse at the concierge when he refused to open the garage gate or lock off one of the lifts because she’d arrived on a Saturday moring – peak time for working people to come and go all day.
Either she or her real estate agent hadn’t read the by-laws or decided they didn’t apply to them. Neither an excuse nor a reason for getting hoity-toity.
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So the argument from our strata manager over a lengthy period of time about privacy seems to be total baloney!
I believe the vast majority of strata schemes are not covered by the Privacy Act. However, the strata Act says that contact details must be provided on the strata roll. The strata roll is part of the documentation owned by the Owners Corp and therefore it must be made available to the strata committee and, indeed, any owner who arranges to go the strata manager’s office and see and copy it.
I wouldn’t concern yourself unduly with why your strata manager is being obstructive in this regard. They are either doing their job properly, as per the law, or they aren’t. And if the latter is demonstrably and provably the case, make a complaint to Fair Trading (which you can do as an individual owner) then get rid of them.
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2. Strata Managers Responsibility wrt Strata Rolls
We appointed from within the SC roles of Chair, Treasurer, and Secretary, notwithstanding that there is a delegated authority in the agreement with the strata manager.
I am pretty sure that the Strata Manager is not providing the committee with the information necessary for it to meet its obligations, unless they are informing the appointed Secretary and he is not informing the committee.
Your committee needs to clarify the role of the strata manager in writing. If they are saying they ARE the office-bearers under the terms of your contract with them, then you need to hold a general meeting to rescind that delegation and rewrite it so that they are only a back-up (which is the proper, standard agreement). Then you can examine whether or not they are properly fulfilling their duties as strata managers and deal with that accordingly.
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This is a long and complex set of questions, so I have broken them down and answered them separately.
Conflict Of Interest and Voting How does the prevention of participating in a vote where committee members have a financial interest work? What is this meant to help manage? Does this have implications/relevance when a developer continues to own multiple units in a building and also has multiple seats (but a minority) on a strata committee?
This is meant to prevent owners who have a financial or business interest in the scheme from swaying votes to favour their business. For instance, owners who are running short-term lets might fall foul of this or if they are renting their property to business that the other owner want to restrict and have the power to do so.
It’s a very loosely worded law (see below) which is yet to be tested at the Tribunal and has a few grey areas. But in a nutshell, judging by section 18 of Part 3 of schedule 2 of the Act (below) any committee member who makes money from a matter being discussed, or is an employee of a company that similarly makes money, must declare their interest (Max fine $1100 for failure to do so) and should leave the meeting while it is being discussed.
NB, this only applies to strata committee meetings. They could still rock up at a general meeting and throw around such voting power as they may have.
Also, if the conflicted party has multiple members on the committee and they vacate, depending on the numbers, that could leave the committee inquorate, meaning any decisions made would be potentially subject to challenge.
For that reason, if no other, the number of representatives of the developer elected to the committee should be restricted, if possible.
18 Disclosure of pecuniary interests(1) If—
(a) a member of a strata committee has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting, and
(b) the interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter,
the member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the strata committee.
Maximum penalty—10 penalty units.(2) A disclosure by a member at a meeting of the strata committee that the member—
(a) is a member, or is in the employment, of a specified corporation or other body, or
(b) is a partner, or is in the employment, of a specified person, or
(c) has some other specified interest relating to a specified corporation or other body or to a specified person,
is a sufficient disclosure of the nature of the interest in any matter relating to that corporation or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under subclause (1).
(3) Particulars of any disclosure made under this clause must be recorded by the strata committee in a book kept for the purpose and that book must be open at all reasonable hours to inspection by any person on payment of the fee determined by the strata committee.
(4) After a member has disclosed the nature of an interest in any matter, the member must not—
(a) be present during any deliberation of the strata committee with respect to the matter, or
(b) take part in any decision of the strata committee with respect to the matter.
(5) (Repealed)
(6) A contravention of this clause does not invalidate any decision of the strata committee.
(7) Without limiting subclause (1), a person has an indirect pecuniary interest in a matter if a person connected with the person has a direct interest in the matter.
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CLO? FTB? WT…? It would help if you at least spelled your acronyms and initials out when you first use them. I’m assuming FTB is Fair Trading “something” but I have no idea what CLO is. Please explain.
IMHO (joke!) acronyms are used to exclude rather than explain or inform. Doctors, scientists and politicians use them all the time because they really don’t want us to know what they’re saying to each other.
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