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I am less familiar with NSW than ACT legislation. Here in the ACT, a consideration would be sections 31 and 107 of our strata act. These enable the OC to recover costs from an owner for breaches of the OC rules (aka bylaws) and hold the owner and tenants to be jointly and separately responsible for breaches. Does NSW have anything similar? In that case, perhaps the owner can be held responsible?
In line with this, if similar provisions exist in NSW and I were on the committee, I would have sent any breach notice to both the owner and the tenant. Otherwise the owner could claim they were unaware of the breach of the rules by the tenant (or invitee of the tenant) and consequently unable to do anything about it. If the owner had been aware, they might be able to do something about it because a condition of the lease would probably include compliance with OC rules.
Here are the ACT provisions:
s.31 Recovery of expenditure resulting from member or unit occupier’s fault
(1)This section applies if an owners corporation for a units plan has in carrying out its functions incurred an expense, or carried out work, that is necessary because of—
(a)a wilful or negligent act or omission of a member of the corporation, or an occupier of the member’s unit; or
(b)a breach of its rules by a member of the corporation, or an occupier of the member’s unit.
(2)The amount spent or the cost of the work is recoverable by the owners corporation from the member as a debt.
(3)If the owners corporation recovers an amount under subsection (2) from a member for an act, omission or breach of an occupier of the member’s unit, the member may recover the amount from the occupier as a debt.
(4)In this section:
expense, includes a reasonable legal expense reasonably incurred, including a legal expense relating to a proceeding in the ACAT.
work, carried out by an owners corporation, means maintenance or anything else the corporation is authorised under this Act to do.
s.107 Effect of rules
(1)There are taken to be agreements under seal between an owners corporation and each of its members, and between each member and each other member, under which the corporation and its members agree to be bound by the rules of the corporation.
(2)An occupier of a unit (who is not the owner of the unit) is bound by each rule of the corporation as if the occupier were the owner of the unit, unless the rules provide otherwise.
(3)If the unit owner does not occupy the unit, the owner is liable separately and together with an occupier of the unit for any breach of the rules of the owners corporation by the occupier, unless the owner proves that the owner took reasonable precautions and exercised appropriate care to prevent the breach.
(4)An occupier of a unit who occupies the unit under a residential tenancy agreement within the meaning of the Residential Tenancies Act 1997 is not bound by any rule of the owners corporation to the extent that the rule is inconsistent with the prescribed terms (or terms to the effect of the prescribed terms) to which the agreement is subject under that Act, section 8.
I am not in NSW but my understanding is that if the roof is common property you need a special resolution but if the roof is part of your lot then it is up to what rules your OC has for approving alterations/additions to units.
“Premier Gladys Berejiklian said the party, if re-elected, would introduce strata law changes to lower the voting threshold from 75 to 50 per cent, “to more easily install solar panels, battery storage and electric vehicle charging points in strata buildings.” ”
The ACT introduced a similar change in 2011 to enable ‘sustainability infrastructure’ to be installed on common property with a single ordinary resolution subject to a set of matters being included in the proposal such as a site map, a statement about how it would be funded, cost and benefits etc. In the ACT this is s.23 of Unit Titles (Management) Act 2011.
To blow my own trumpet just a little, the ACT’s came out of difficulties in the strata development I live in. We had a majority in favour, twice, in 2009 but were unable to proceed with a solar PV array on a common property carport to offset the OC’s electricity account because we fell a few votes short of a special resolution after a negative campaign by a few owners. On a third attempt in 2012 it got up with 86% in favour, by which time we only needed an ordinary resolution.
I hope the other NSW parties match this policy to ensure it goes ahead regardless of who wins.
Formal letters purporting to represent the Owners Corporation should be approved by the committee, not issued unilaterally by the secretary or treasurer.
That said, as a treasurer, I occasionally sent an informal and friendly reminder/explanation note about levies before the more formal correspondence from the managing agent would be received, particularly if the owner was new and might not understand the process, and I did not always run that by the committee. However, I did report to the committee on how many owners were behind on levies and I did tell them whenever I had sent such notes.
I don’t think NSW has a code of conduct for committee members but in the ACT, creating a nuisance over petty matters while purporting to represent a decision of the committee (which exercises the functions of the owners corporation) would be contrary to the code of conduct.
Perhaps the motion to adopt that by-law was not especially well worded. One thing to do would be to look at any supporting documentation or comment that went with the motion or the minutes of the meeting. Perhaps it was stated or someone asked if this would include doors and the proponents of the motion said yes or no and people voted to adopt the resolution on that understanding. What I am getting at is that it might be clear that the spirit and intention of the decision was to include everything that had paint, varnish, lacquer, whatever or it might be clear that it really was only about some very particular walls.
I am in the ACT rather than NSW but principles tend to remain much the same. If anything NSW tends to explicitly codify the minutiae rather more so JT might be able to quote the correct chapter and verse. Anyway, the short answer, I think, is that you are a member of the owners corporation and you can ask to inspect the OC records. Whether they are held by a managing agent or the secretary (if you are self-managed), it is reasonable to book a mutually convenient time.
Perhaps simpler would be to just directly and politely ask for a copy of the things that are pertinent to your concerns. Be open about it. As a member of the OC you have an interest and would like to be reassured by seeing a copy of the engineer’s report and quotes for work to repair … etc. If you have relevant expertise, a non-combative approach might be to offer to assist the committee.
When I was on our committee we would occasionally ask non-committee members with professional expertise to help. Eg. we would sometimes ask an owner with a forestry degree what she thought about a tree someone was worried about before calling an arborist or we would ask an architect owner what he thought about a crack in a wall before getting a builder or structural engineer in. It wasn’t a substitute for professional advice but it helped us to ask the right questions and better understand the answers.
As usual, NSW states explicitly what the ACT has to work out by applying logic to the more general principles.
Even if a few owners who voted were in arrears, would it have made any difference to the outcome of the vote? As JT says, the Tribunal is less likely to be fussed about whether the meeting was conducted with perfect observation of all proprieties, than whether the managing agent is doing an adequate job now.
You could ask the managing agent for a copy of the strata plan, which should clarify what is part of the lot and what is common property.
Even if the courtyard is common property, there might be a by-law or other resolution that grants exclusive use of the courtyard to the owner of your lot. That grant of exclusive use (in the ACT it would be called a ‘special privilege’) might have conditions attached.
Even with that explicit delegation to the strata manager and even with that being a decision of the OC at a general meeting rather than a committee decision and OC decisions are superior to committee decisions, the Act still makes the chair, treasurer and secretary responsible for their functions as set out in the Act. The Act is superior to decisions of the OC or the committee. So, I would contend, that the office bearers have obligations derived from the Act which over-ride the delegation made by the general meeting decision to enter into the contract with the managing agent.
The office bearers must ensure that the delegated functions are occurring properly by either insisting that the manager does the job and doing it themselves if that is unsuccessful. If the manager is demonstrably failing to do the job they were contracted to do then you could give them notice.
If I were on the committee, I would be trying to improve relations with the manager while being very firm about what you expect but also pragmatically just doing some things ourselves as a committee because that gets it done and done right.
Perhaps the way forward is to nominate for the committee and then work from within. In order to get elected to the committee, perhaps disclose your intentions to those of your neighbours that you trust and feel to be sympathetic to your concerns.
Is there someone this lady gets on with or has she alienated everyone? Is there some way to indirectly influence her to tone it down a bit via a neighbour/friend? Or is it a mental health issue that you don’t have much chance of fixing?
If you are not doing so already, I suggest keeping a diary of incidents. Another option, suggested recently in this forum by JT for another person facing verbal abuse, is to pull out a mobile phone and say loudly that you are recording. Privacy laws only prevent secret recording.
The EGM could pass a motion directing the council/committee to seek Tribunal orders to enforce a particular set of breach notices, which should specify what by-law has been breached what the owner is supposed to do or not do to remedy that breach. In itself that would add weight to the seriousness with which the whole Owners Corporation takes the matter and it would demonstrate that the matter is not just about one member of the committee with an unreasonable beef. The motion could include approving a budget for legal expenses. Don’t ham-string the committee by not allocating enough. The GM resolution might also direct the committee to take advice on whether it could recoup some or all of that cost through a Tribunal order or other means. I don’t think you could just bill the offending owner without the Tribunal authority.
Where I am (ACT), the strata legislation allows the committee to take legal action if the cost is unlikely to exceed an amount set and adjusted from time to time by regulation. If a general meeting approves a cost then the default limit on the committee is overridden by the general meeting direction.
We also have a section of the Act which says the OC can recoup reasonable costs, including legal costs, if it has in carrying out its functions incurred an expense, or carried out work, that is necessary because of a wilful or negligent act or omission of a member of the corporation, or an occupier of the member’s unit; or a breach of its rules by a member of the corporation, or an occupier of the member’s unit.
Perhaps you have a similar section of your strata act, which you can refer to.
Going in asking for costs at the start might not be a good look since the Tribunals are intended to generally operate with each party looking after their own costs. It does not cost much initially to apply for an order. Be clear about what you are asking for. Most likely that would be for an order that your owner must comply with the breach notices.
If the owner continues to offend in the same way, they would no longer be just ignoring a breach notice, they would instead be failing to comply with a Tribunal order, which is a more serious offence.
If you are lucky, just going to the initial mediation or directions hearing, which are relatively informal, may be enough to make it clear you are serious and for the owner to decide to behave better. You can ask for ‘consent orders’ at that point. If the owners says ‘I won’t do it again’, you can ask for a consent order, that is an order that both parties agree to, to give that promise the extra weight of an order. If they do do it again, you are immediately in a stronger position. Tribunals don’t like it when their orders are ignored.
While it is daunting at first if you have no experience, the Tribunals are accustomed to dealing with ordinary people who have no legal training. The main thing is to be very clear about what order you want. It has to be very concrete – that some person does or does not do some particular thing in some stated time.