[Kangaroo]

Andilee,

Two other options you might consider:

1) Approach the EC again and point out that you are just the first townhouse to be faced with this predicament. Eventually all the others will be too. Perhaps, if they don’t like the appearance of various models of SHW panels spreading like measles across the roofs, they should bite the bullet and get the gas connected to each townhouse at communal (BC) expense.

2) I’m not usually one to suggest subterfuge, but have you ever desired to take a quick holiday across the border and back in time to NSW where you could probably acquire one of those 20th century antiques you’re interested in?

PeterC,

I suspect that last suggestion does not please you. In concept I support solar power, but I have a problem with governments who impose contradictory rules, i.e. a standard By-Law about changing the “Appearance of the Lot” and then deny lot-owners the ability to replace like-for-like. Added to which, governments have not encouraged manufacturers to develop any aesthetic solutions for implementing solar systems generally, nor have they devoted one minute of thought to installation of sustainability equipment in the strata schemes they encourage for increased population density.

[Kangaroo]

I wouldn’t dismiss a heat pump or split system heat pump.

They work on air temperature, not sunlight, so the aspect shouldn’t matter.

 

[Kangaroo]

Molly,

So the PM is trying to stick you with $1,000 for drying out the carpet plus $2,500 for a new carpet plus $2,587 for water usage arrears = $6,087.

First, send an SMS back to the PM saying “I do not accept demands for payment delivered by SMS. Please send a hard-copy invoice with copies of all water usage charges for the arrears period to my residential address”.

Then, go talk to your local tenants group as Whale advised.

I forget, do you live in an apartment block or villa/townhouse?

Does the strata scheme have separate water meters for each lot or just a single meter for thew whole building?

Here is what the current Standard Residential Tenancy Agreement says:

https://www.fairtrading.nsw.gov.au/pdfs/Tenants_and_home_owners/Residential_tenancy_agreement.pdf

See clause 11, particularly 11.3.

Is your old agreement the same?

If so, the PM doesn’t have a leg to stand on, just like Oscar Pistorius.

[Kangaroo]

@Whale said:

Thanks Peter and Kanga – I’m coming from an angle based on my interpretation of the S76(4), whereby a Special Levy is to be raised (only) in circumstances where an expense arises, the payment of which “cannot at once be met from either fund”.
 

@Whale said:

You know how it feels when you think that you’ve got it right even though one of the biggest strata managers in NSW has taken a different (incorrect) approach;

I need to get this clear in my own mind too, for a similar situation.

My disagreement is with the two words you have inserted in brackets.

Just because the Act specifies a situation where you must impose a Special Levy does not mean that is the only situation where the OC may decide to have one. That make the SM’s proposal a viable alternative but not incorrect. But their assertion that it is the only solution is incorrect.

IMHO, your proposal is also legal and viable (if you have cash flow).

And what owner would not prefer the time-payment approach rather than an immediate large Special Levy?

Are we on the same page?

[Kangaroo]

I agree with KP.

Don’t leave everything up to others, like the EC.

Being responsible for a strata sheme ain’t always easy. Even a small townhouse complex is far more work than a Torrens Title house, and the EC members probably bought into it on the same fallacy you did, that “a strata property is less work than a house”.

You figure out a solution.

You obtain quotes.

Present them to the EC for approval.

[Kangaroo]

I think the upstairs owner should first take the hardwood floor company to the CTTT.

How do you tell if a hardwood floor salesman is lying?

His mouth is moving.

[Kangaroo]

Whale,

Thanks for providing a different perspective on this question.

Most SMs go by two inviolate (according to them) commandments:

1) A deficit must be corrected by the imposition of a Special Levy to be paid within 3 months.

2) All Special Levies must be paid into the Admin Fund.

Having re-read those sections of the Act at your instigation, I agree your interpretation is valid, if that is what your OC chooses to do.

IMHO:

S76(4) specifies the only case where the OC must impose a Special Levy, and then it must be paid into the Admin Fund.

That does not preclude an OC resolving to collect a Special Levy for other reasons (such as filling an Admin Fund deficit even though your total funds are adequate to cover cash flow) or to collect a Special Levy to be paid into the Sinking Fund (to cover an upcoming, but not yet incurred, large expense).

I agree with you that S71(3) really only says you have to make a determination how the OC will address the deficit, and that does not preclude that determination being, for instance, that from the next AGM the normal  Admin Fund Levy will be temporarily increased by $20,000 per year for the following two years.

[Kangaroo]

So the SSMA defines who can vote:

1) For Corporations in the positive (i.e. a nominee)

2) For Trusts in the negative (i.e. not beneficiaries)

I think they should be brought into line by changing the Corporation rules:

1) For Corporations in the negative (i.e. not shareholders).

[Kangaroo]

Lisa,

I don’t have personal experience of this, but I don’t believe it should be your Strata’s responsibility to pay either.

IMHO, Clause 2 of the approval conditions takes precedence over the other conditions as it appears earlier.

Also IMHO, the Strata should not necessarily be involved (in the dispute), as the lower owner can take the higher owner to the CTTT in their own right.

However, there does seem to be some confusion over the standards.

Impact Isolation Class (IIC).

With IIC the higher the number the greater the sound isolation effect. A good IIC standard is 60. 70 is excellent but not realistically achievable with timber, parquetry, ceramic tiles, marble or stone flooring.

Ln, Tw +c1 (whatever that means).

With Ln, Tw +c1 the lower the number the greater the sound isolation effect. A good Ln, Tw +c1 standard is 50. 40 is excellent but not realistically achievable with timber, parquetry, ceramic tiles, marble or stone flooring.

I think one measures attenuation and the other measures transmission.

The SM specified IIC of 69. That’s good. Just like carpet.

The upstairs owner is not entitled to demand, especially post-installation, that they “should have been given” a lower standard.

Or are they just confused about the two standards?

Anyway the SM gave correct advice.

And the By-Laws (against noise) take precedence.

[Kangaroo]

My Mum told me to strike a happy medium.

But they always saw it coming.

[Kangaroo]

I agree with JT, I think you’re protected by s.118. If you haven’t received a new s.118, the OC can only act in accordance with the old one.

Probate will be required as there is real property involved.

There are 3 phases of managing a deceased estate:

1) From Death until Probate

No-one is allowed to “deal” with the property because the Court has not decided who has that right. This is the same principle as banks freezing the accounts of the deceased during this period. I suspect “deal” includes voting or writing a proxy.

However, you might also check whether levies have fallen into arrears (which has some nice consequences) if you are still in this phase.

2) From Probate until Transfer

The Executor should submit a s.118 to notify their right to vote as a Trustee. And they should pay the levies as they have a duty to maintain and protect the assets.

3) After Transfer

The new Owner should submit another s.118 to notify their right to vote as an Owner.

I also agree with Mountain man’s interpretation of what Schedule 3 Clause 10 (7) ought to say. The ambiguity arises when the Trustee is the same “person” as the (intended) beneficiary, which happens often. The clause should have distinguished between the two roles of the same “person”.

Another piece of the SSMA to be rewritten! Until then, the words are all we have (apologies to The BGs) and smart lawyers (and I am neither) could argue either way.

[Kangaroo]

Whale,

You’re probably way more familiar with the Act than I am, but these are my thoughts from a bootstrap perspective:

1) The dead owner can’t sign anything.

2) Nobody is an executor or executrix until probate has been granted.

3) The size of that estate sounds like it will need probate.

4) If probate hasn’t been granted, nobody has the legal right to sign a proxy.

5) If probate has been granted, there’s a part of the Act that seems very strange to me, Schedule 3 section 10 clause (7) which says:

Exercise of voting rights where owner holds lot as trustee

If the owner of a lot holds it as trustee, a person beneficially entitled may not vote at a general meeting.

 

5) That seems very unfair to me, as it’s usually the beneficiaries of a deceased estate trust who take on the executor job.

6) So that clause would seem to leave the lot disenfranchised and unrepresented until probate has been granted.

7) And then the executor would have to appoint a proxy other than themself.

[Kangaroo]

@JimmyT said:
Why have you underlined and bolded “one”?  What is the significance?

 

It sounded like an EGM was imminent but not yet called, so in the interest of not being out-manouvered, one owner could submit the motion, then round up the 25% needed to call the EGM.

Alternatively, if the 25% have all agreed the motion, it could be submitted with the requisition for the EGM.

And in case he couldn’t get the 25% for an EGM, it would still be on the agenda for the next AGM.

I totally agree that “batting order” is also important, but not controlled under the Act. I know of one Chairman/Secretary who, if a motion is received from an owner, will always write his own version and put it earlier on the agenda so that he can then rule the other owner’s motion as “out of order – already resolved”.

 

[Kangaroo]

I think your success will depend on whether you have either the Chairman or Secretary amongst those who requisition the EGM.

First of all, PeterC is correct in that “the EC and OC retains all powers they care to exercise”.

So, if the (owner) Chairman is amongst your number, he should care to chair the EGM, thus picking up any proxies nominating “The Chairman of the Meeting”, rather than the SM doing so.

Second, any one owner may submit a motion for the next GM.

So, after agreeing the wording amongst yourselves, do that.

Then, get your 25% to requisition the EGM.

I take a much firmer line than JT on whether anybody is entitled to re-word the motion as submitted. This is what the Act says (with my blue bolding):

36   Requisition for motion to be included on agenda for general meeting

(1)  Any person entitled to vote at a general meeting of an owners corporation on a motion that does not require a unanimous resolution may, by notice in writing served on the secretary of the executive committee, require inclusion in the agenda of the next general meeting of the owners corporation of a motion set out in the notice and the secretary must comply with the notice.

[Kangaroo]

Rita,

Thanks for answering those questions.

I hope you understand that I was only asking them to confirm that you actually had an insurance policy which covered your situation.

I think the next step is for you or the EC to negotiate with the insurer for advance agreement in writing that they will cover either alternative accommodation or loss of rent.

You have several bargaining chips:

1) As you say, they had the option of excluding loss of rent in the policy, but did not do so.

2) If they do not agree to cover loss of rent, you will move back in as per JT’s suggestion, and they will then have to cover your alternative accommodation and removal/storage costs.

3) So, they can save money if they agree, because you will not need to claim removal/storage costs.

But, a couple of other points:

1) If the unit is not declared uninhabitable, but the tenants move out anyway for fear of “inconvenience”, you have the right to sue them for breach of contract. Get your compensation from them instead of the OC.

2) As I said before, we had our whole pitched roof replaced without any top-floor resident having to move out. In fact, all residents (owners and tenants) were equally inconvenienced by the part of common property cordoned off for the debris chute and tile elevator. Jimmy will be pleased by our non-discrimination!

And, for Jimmy:

Yes, there does seem to be a “hard cheese” clause in strata law, and the whole cheese platter is always placed firmly in front of resident owners.

In this case, if their unit is declared “habitable”, they will not be compensated for the “inconvenience” of building works and noise, but apparently tenants have the option to end their lease without penalty or to receive a reduced rent.

[Author]

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