Forum Replies Created
-
Replies
-
If your committee is waiving the requirements of item (iii) then it is effectively rewriting and undermining your by-law. Therefore permission given through that avenue may not be valid.
Your owners corp should insist at a general meeting that the floors permitted under the waiver be checked. You should then have a serious discussion about the committee’s operation and whether that by-law is fit for purpose or need to be rewritten.
The owners given the waiver should be told that the flooring installation may be in breach of the by-law and therefore subject to challenge if there is ever any noise problem.
Committee members tend to be indemnified against making mistakes as long as they are acting ingood faith. If the owner did want to pursue them for compensation, they’d have to prove that they knew the effect of the by-laws but decided to ignore it. Even then, it could easily revert back to the owners corp, but that’s assuming the owner had a case at all. And it would have to go through a local court, rather than NCAT, which has no provision that I know of for claiming damages for bad decisions, especially those made to benefit the owner making the claim.
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.
Is the EGM result acceptable if fewer than 50% vote?
General meetings are decided on the percentage of people who actually voted rather than who attended and/or actively abstained.
I recall long and pointless discussions about whether an abstention was a vote or not because people would say that if 40 people voted yes and 40 voted no and 20 abstained, the motion had failed becasue fewer than half the voters voted in favour.
This is of course nonsense. In NSW, unless it’s a special resolution, 51 percent of people actually voting in person or by proxy carries the vote, and that could be 6 people out of 10 who’ve bothered to turn up out of in a block of 100.
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.
Can the original EGM be changed to this extent, i.e., to sway the voter in a different direction?
My reading of the Act is that when you submit a motion for consideration, the secretary “must give effect” to that motion. They clearly didn’t do this so they are in breach of the Act.
I would get your 30 percent of owners to petition the committee to hold another EGM (you only need 25 per cent) at which your actual motions and not their manipulated motions are presented.
I would also include a motion of censure of the the secretary and chair for deliberately distorting the discussion by not following the terms of the Act (see below).
The Act says this (my emphasis):
Inclusion of matters on agenda
(1) Any owner, or any person entitled to vote at a general meeting of an owners corporation, may require a motion to be included in the agenda of the next general meeting of the owners corporation.
(2) The requirement is to be made by written notice given to the secretary of the owners corporation that:
(a) sets out the required motion, and
(b) states the name of the person making the requirement, and
(c) includes an explanation of the motion of not more than 300 words in length.
(3) The secretary must give effect to the requirement.
(4) However, if the requirement is made after notice has been given of the meeting, the secretary must include the motion in the agenda for the next subsequent meeting.
(5) An owner or a person may make a requirement even if the owner or person cannot vote because the owner is an unfinancial owner.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.
A couple of points here.
The Act uses the word “estimate” – that implies it doesn’t expect a legally binding commitment to spend the amount listed on the defined item.
Also, strata schemes are largely self-policing. Take a stroll through the Act and see how many rules and regulations carry no penalties for failure to comply.
The implied punishment is when someone in the scheme complains to NCAT, seeking orders to compel the owners corp to obey the law or face removal and replacement by a compulsory manager.
There are no StrataKops.
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.
Here’s what Section 79 0f the NSW Act says:
The Admin fund would cover “recurrent expenses” which would include “such regular expenses as insurance, water charges, electricity charges, carpet cleaning, lawn mowing services and the like and minor expenses relating to maintenance of the common property.”
The Capital Works fund should meet “expenses of a capital nature [which] would include expenses in relation to major repairs or improvements to the common property or personal property of the owners corporation, such
as replacement of roofing, guttering or fences and the like.”In other words, replacing common property equipment would be a Capital Works purchase.
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.
If an equipment (around $4,000) fails and has to be replaced, can we claim it under Capital Works or Admin? When is it acceptable to post a transaction to Capital Works?
Are you also in Victoria (like the OP)?
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 can’t see why not. maintenance issues can arise unexpectedly, and inaction could exacerbate them or cause other problems elsewhere. As long as the action is discussed, voted on and minuted, there shouldn’t be any problem – unless it means planned maintenance is delayed in a harmful way.
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.
Is there anything on the laws and decisions that: 1. Allow for Blanket Permits. 2. An application and permit for each individual animal, each and every time a new pet is taken whether new or replacement 3. What an application should minimally contain. Acceptability of oral applications. 4. What a permit should minimally contain.
I think you have to accept that strata law and strata communities’ attitudes have changed. It was once the case that the very idea of pets in an apartment block was considered ridiculous. Not so now.
In answer to your questions, if a matter is not specifically forbidden, then it is probably allowed, so you won’t find the rules you seek. Communities set their own standards through their by-laws. If they don’t there are plenty of fundamental laws about nuisance – some of which relate to pets – that you can fall back on, in extreme cases.
However, if the by-law requires written permission, then that is what’s required. But a tribunal is not going to evict a dog or sack a committee because they gave permission orally or overlooked the fact that one dog had departed and been replaced.
Decide what it is that you want, specifically, then the Flat Chat community can offer worthwhile advice.
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.
The process is that you seek mediation from Fair Trading, specifying which section of the Act you feel is relevant. You and the other party will receive a notice telling you that there is to be a mediation and suggesting a date.
If the matter is not resolved – and Fair Trading will not make any kind of ruling – then you can proceed to NCAT for a ruling.
So, first off, you have to decide with whom you intend to seek mediation – the owner for breaching by-laws or the strata committee for failing to enforce their by-laws. It could be:
- Section 135 Requirement to comply with by-laws
- Section 153 Owner creating a nuisance
- Section 156 Order for removal of an animal not permitted under by-law
- Section 158 Order for removal of an animal permitted under by-laws
If you make your dispute against the strata committee, it could be:
- Section 232 Orders to settle disputes or rectify complaints …
(1)(e) failure to exercise a function conferred or imposed by or under this Act or the by-laws of a strata scheme. - (2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if:
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
You can read details of all of these sections here in the Act.
Mediation more often than not doesn’t lead to NCAT action and that is always your choice. You can seek mediation without committing to NCAT action – and it’s free – but you can’t take action at NCAT without prior mediation (in most cases).
You find more information including a link to an online application for mediation HERE.
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.
This could all be resolved at the next AGM, when the blocking vote would not apply as the new committee and office-bearers have to be elected, regardless of any other motions.
However, if it’s a matter of urgency, you could put a motion to the general meeting, calling for the secretary’s resignation.
You could also propose a motion that the committee seeks a ruling from NCAT under Section 197 c (below), and that all
membersowners be made aware of the potential costs of pursuing and defending this motion given that all owners will be contributing to taking the action but only the owners in the losing side in the argument have to pay a special levy to cover the costs of defending the action.Yes, it’s a scare campaign but it could all be resolved if he just steps down from his role as secretary. If the owners in his building become aware that the disruption and heavy legal costs are solely due to the failure of their secretary to accede to requests of the majority of committee members for him to vacate his office-bearer role on the community association, the might put pressure on him to step down.
You might even be able to persuade the committee of the other building to remove the person as secretary of their committee which would trigger his removal from your committee.
In my experience, the fear of costly legal battles will motivate strata owners more than moral or political arguments. And just commencing action, and letting owners know about it, is often enough to put those involved back in their box.
But a word of caution – I wouldn’t get too specific about why you want him removed. Just say that the majority of members of the committee want him to cease acting as secretary but he is using arcane legal arguments to prevent a civilised transfer of duties, forcing members to consider action at NCAT to assert the will of the majority of committee members.
197 Orders relating to association committee and officers(1) The Tribunal may, on its own motion or on application by an interested person, make any of the following orders—
(a) an order removing a person from an association committee,
(b) an order prohibiting an association committee from determining a specified matter and requiring the matter to be determined by resolution of the association,
(c) an order removing 1 or more of the officers of an association from office and from the association committee.
(2) Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has—
(a) failed to comply with this Act or the regulations, or the by-laws or management statement of the association scheme, or
(b) failed to exercise due care and diligence, or engaged in serious misconduct, while holding the office.
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.
invoking schedule 2, part 3, clause 7, point 4 of the CLMA objecting to the decision being made.
For anyone bewildered by theses references, the CLMA is the Community Land Management Act and the reference is to a clause which says this:
(4) Decisions to have no effect if opposed by more than specified owners
A decision of an association committee has no force or effect if, before the decision is made, notice is given to the secretary of the association by 1 or more owners of relevant lots, the sum of whose unit entitlements exceeds one-third of the total unit entitlements, that the making of the decision is opposed by those owners.
The secretary also seems to be depending on clause 39 which says a committee member can only be remove by a special resolution at a general meeting (which can be blocked by a 25 per cent vote against).
Section 39 allows for an “officer” to be removed from that office simply by electing someone else to it, but that has to be done by the committee, and if the committee member has the votes to block that motion, then they can do so (which is how we got here).
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.
MrB has a history of sneaking dogs in without asking for approval. We just learn of it when it starts barking and the smell comes out into common indoor areas or if I happen to see a glimpse of it outdoors.
Excessive barking and offensive odours are both grounds for action at NCAT, regardless of any by-laws. And, yes, Mr B will take this personally. Perhaps a letter to the strata committee explaining your options, and inviting them to sort this out to avoid any unnecessary conflict, might do the trick. Couched in terms that you don’t want to cause trouble but you feel you are being ignored might soften the blow.
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.
In case no one responds directly, go to this website (click on link): BarNet Jade – Find recent Australian legal decisions, judgments, case summaries for legal professionals (Judgments And Decisions Enhanced)
In case it doesn’t take you there directly, in the menu on the left, for the court, you want WASAT (WA State Administrative Tribunal), and in key words, type “body corporate”.
The resulting list will show recent strata cases in WA. Look through them and get the names of the lawyers involved – especially if they won. Google the names and check out the companies online.
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 am from NSW, with the older pets by-law which requires written permit, Owners Corporation (OC) not unreasonably withholding approval.
All older pet by-laws have largely been superseded by regulations and by-laws that basically say either all the owner has to do is notify the owners corp that they have a pet, or seek approval, with conditions, that may not be unreasonably refused.
Recent court cases have pushed the needle on pets to a default of acceptance, subject to the animals not proving to be a nuisance
The other side of this is an “interference” regulation that lists the grounds on which you can complain about an animal (below).
Correct procedure clearly wasn’t followed in this case but given that it would have been harder to refuse than accept, and the former would have led inevitably to a Tribunal challenge, I can see why the committee and strata manager would let it ride.
In the same vein, no Tribunal is going to remove a manager because they didn’t follow the letter of the law in achieving an outcome that was inevitable either way.
However, fi the dogs are proving to be a buisance, here are the grounds for dealing with them:
36A Keeping of animals—circumstances of unreasonable interferenceFor the purposes of the Act, section 137B(3), the circumstances in which the keeping of an animal unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property are—
(a) the animal makes a noise that persistently occurs to the degree that the noise unreasonably interferes with the peace, comfort or convenience of another occupant, or
(b) the animal repeatedly runs at or chases another occupant, a visitor of another occupant or an animal kept by another occupant, or
(c) the animal attacks or otherwise menaces another occupant, a visitor of another occupant or an animal kept by another occupant, or
(d) the animal repeatedly causes damage to the common property or another lot, or
(e) the animal endangers the health of another occupant through infection or infestation, or
(f) the animal causes a persistent offensive odour that penetrates another lot or the common property, or
(g) for a cat kept on a lot—the owner of the animal fails to comply with an order that is in force under the Companion Animals Act 1998, section 31, or
(h) for a dog kept on a lot—
(i) the owner of the animal fails to comply with an order that is in force under the Companion Animals Act 1998, section 32A, or
(ii) the animal is declared to be a menacing dog or a dangerous dog under the Companion Animals Act 1998, section 34, or
(iii) the animal is a restricted dog within the meaning of the Companion Animals Act 1998, section 55(1).
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.