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You wrote (in regular text below) with my response in italics:
Please use the quote function (see above). I really don’t want or expect our readers to read great slabs of italics. I have fixed it for you in the previous post. It’s really quite simple … but I don’t have the time or inclination to re-edit posts that don’t follow the style of the Forum.
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Or if it fails horribly might you even just stump up the cost yourself and wear it
Or pay for it yourself and send them the bill (threat of court action to follow).
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What you are seeking is damages for the trimming of the shrubs, which is a civil matter.
That is true but the rest is debatable. The process could be easier and more satisfactory by firstly presenting a bill for the replacement bushes then, if the owners corp doesn’t pay, taking them to the Small Claims Division of your District Court, where you are not expected to be represented by a lawyer.
Have a look at this Fact Sheet. It seems you don’t need to engage lawyers at all if the bill is under $10,000.
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The owners corporation is still required to have a strata committee and office bearers regardless of delegations made to the strata managing agent. It may be necessary to convene appropriate meetings to elect a committee and office bearers in the case of TrulEConcerned’s scheme.
In NSW you can have a committee of One, and one person can hold all the offices. And this is an interesting wrinkle … it might only apply to the initial period and transition from it, but the law says if meetings aren’t held, the Tribunal can order one to be held at the request of an owner.
20 Tribunal may appoint person to hold first AGM and other meetings(1) The Tribunal may, on application by an owners corporation or an owner or mortgagee of a lot in a strata scheme, order a person to convene and hold a meeting of the owners corporation within the time specified in the order if a meeting has not been convened and held in accordance with this Act.
(2) The person who is to convene and hold the meeting is to be a person nominated by the applicant, or appointed by the Tribunal, who has consented to the nomination or appointment.
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I believe strata law in NSW allows owners in two-lot strata schemes to insure their properties individually, provided the dwellings are not physically attached. This can be a problem when one owner has a house, contents and car insurance package and doesn’t want to give that up to take a combined insurance with the other lot. There is no compulsion for the two lots to have a shared insurance although that can prove more economical than standalone insurances for separate lots.
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The Act allows the OC to delegate certain powers to the committee and/or the strata manager. But it also specifies certain issues that may only be determined at a general meeting. And it says a committee MUST be formed but says in the absence of one, there is nothing to prevent a strata manager from exercising delegated powers.
29 Owners corporation to appoint strata committee(1) An owners corporation must appoint a strata committee of the owners corporation in accordance with this Act.
(2) The owners corporation may appoint the strata committee before the first annual general meeting of the owners corporation.
(3) The members of the strata committee must be elected at the first annual general meeting of the owners corporation whether or not members were appointed before that meeting.
(4) If there is no strata committee of an owners corporation, the strata scheme must be administered by the owners corporation, but nothing in this subsection prevents a strata managing agent appointed under this Act from exercising any functions conferred on the agent.
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Despite their normally cordial relationships, it seems the Owners Corporation Network (OCN), the number one advocacy for strata owners in NSW and Victoria, has issues with Strata Community Australia over aspects of the standard agreement (which SCA is apparently revising, in any case.)
This is how OCN suggests you alter the standard agreement with respect to Section 6.
Agent liability
In the standard agreement, the agent is excluded from all liability for any claim, liability or loss arising
directly or indirectly out of the services or additional services or arising from any cause of action
whatsoever except to the extent that the claim, liability or loss is caused or contributed to by the agent’s
breach of this agreement, breach of statutory duty, negligence, dishonesty or fraud and requires the
owners corporation to indemnify the agent against and loss.
If you think this is unreasonable then revise existing 6.2 to read (noting strike outs)6.2 The agent is excluded from all liability for any claim, liability or loss arising directly or indirectly
out of the services or additional services or arising from any cause of action whatsoever except to the
extent that the claim, liability or loss is caused or contributed to by the agent’swilfulbreach of this
agreement, breach of statutory duty,grossnegligence, dishonesty or fraud.The owners corporation
agrees that it will at all times indemnify the agent against all actions, suits, proceedings, costs, claims,
expenses or demands which may arise in the course of or as a result of the agent’s management of
the scheme, including all legal expenses incurred by the agent in defence of or initiation of any legal
proceedings as well as any excess payable under the agent’s professional indemnity insurance;
(a) by third parties against the agent;
(b) by the owners corporation against the agent arising before, during or after this agreement.If you are considering this substantial adjustment to the strata management agreement, have a chat with OCN first about how this might play. But bear in mind, if your Owners Corp isn’t happy with any contract, they don’t have to sign it.
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does the SC have to use legal terms to describe the failures?
You would use the terms used in the contract, nothing more, nothing less, as that reduces the opportunity for fudging the issues and deliberate misinterpretation.
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Have you looked at our sponsors, Stratabox. They may have what you are looking for with a bit more functionality.
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Since the legislation requires that the NTC contains the details of the by-law allegedly being breached then it makes sense that there should be an NTC for each breach. There’s nothing to stop the SM sending out all four at the same time, however. I don’t think there would be any cumulative effect at this stage – each case would be considered on its merits.
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Another person posted a different question in my thread, and was not chastised for this.
It was a related matter. You were “chastised” for asking the same question in two threads which is not acceptable. Meanwhile, you have had free advice from me and, more importantly, the President of Strata Community Association (Vic). I think you are doing OK, overall.
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So, if the SM refuses to act, can the SC Secretary issue the NTC without holding a meeting?
If the Strata Committee and/or strata manager have delegated powers from the owners corporation then either can issue Notices To Comply. The SM can do so off their own bat, the strata secretary can do so if their has been a committee meeting approving the issuance of the NTC.
Delegated powers are pretty standard and are generally agreed at every AGM without discussion or dispute. I would be very surprised if your scheme doesn’t have them.
However, if that’s the case, hold a general meeting now, delegate the powers and issue the NTC at the same time. It really bothers me that your strata manager isn’t either following instructions or giving you this advice. What are you paying them for?
In the absence of an NTC option, you can seek mediation with the renovator with a view to getting a stop-work order at NCAT.
If you don’t do anything the renovator will pop up in acouple of years expecting you to fix common property, saying your committee knew the renovations were going ahead but did nothing to stop them.
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It’s not their choice to pick and choose what they do and they have little leeway if the motion was specific enough.
You’re right, of course. But there are no Stratakops to come and beat them around the head when they delay the process with quotes and reports and lo and behold the weather has changed so we’ll have to wait until next year.
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I would be applying for mediation with a view to taking a section 232 request for orders compelling the committee to follow the instructions of the OC. I might even follow up with a request for interim orders to accelerate the process due to the time pressure of planting asap.
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