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The state and territory Tribunals are intended to be low cost, often able to be run without lawyers, and generally don’t award costs except in unusual circumstances. If the lawyer has just given you their bill or the builder has passed it on to you, I don’t think you need to pay it. They are bluffing. For you to be liable to pay the bill, they would have needed to apply to the Tribunal to award costs, specified what those costs were, shown that they were reasonable, and then the Tribunal might have ordered you to pay those costs. Generally the loser in a matter is only ordered to pay costs if the Tribunal believes they have been uncooperative or caused the other party’s costs to be excessive through unreasonable behaviour. The Tribunal would generally provide written reasons for such a decision along with its orders.
Edit: And do what JT says, above.
Is there a gate on the two individual driveways? Do all the gates (or just the central gate if that is all there is) restrict access to the common property and thereby increase the security of the common property?
If security is increased by restricting access to the common property, then there is a benefit to all and the cost should be shared by all.
If there are security gates on the individual driveways as well and those are common property, then it makes sense for the whole OC to maintain all three gates. The alternative would be for two owners to be fully responsible for one gate each. Even if the owners with individual drives do not care to use the common property behind the central gate, I presume they could if they (or another owner of their unit) wanted to. In that case, they also gain a (potential) benefit from the gate and should pay their share.
I would expect (from another jurisdiction, not Victoria) that the OC generally pays for common property stuff. Where I am some units have their private driveways directly off the public road whereas other units connect to sections of road on common property. Maintenance of the sections of road on common property was always an OC cost, even though a subset of owners might only walk on it sometimes but are unlikely to have a reason to drive that way.
OWNERS CORPORATIONS ACT 2006 – SECT 28
Liability of lot owners(1) The owners for the time being and any purchaser in possession of, and any person entitled to receive the rents and profits from, a lot are liable to pay any outstanding fees, charge, contribution or amount owing to the owners corporation in respect of that lot.
(2) A lot owner is not liable to pay or contribute to the funds of the owners corporation a proportion of any amount required to discharge a liability of the owners corporation exceeding the lot owner’s lot liability.
(3) Subsection (2) does not apply to an amount payable to an owners corporation for repairs, maintenance or other works that are undertaken by the owners corporation on common property or a lot and which are wholly or substantially for the benefit of some or one, but not all, of the lots affected by the owners corporation.
I don’t think you need a general meeting resolution. The committee has a chair, treasurer and secretary. While the contract with a strata manager may include that the SM will exercise many of the functions of those office bearers, those office bearers have the final responsibility to see that those functions are being carried out properly. The SM is engaged to assist the executive committee in its functions, not the other way around. The committee has a function and responsibility to oversee the office bearers and satisfy themselves that the office bearers functions are being carried out properly.
So, if the committee decides that it wants certain of the office bearer functions to be undertaken by those office bearers rather than delegated to the SM, then it can so resolve. Our executive committee has traditionally been more hands-on than most and each new SM has had to learn that.
The SM has a professional duty to step in and advise if they think the committee is not acting as it should but ultimately the buck stops with the committee. If the SM thinks the committee is really going off the rails, the SM would be wise to put their advice in writing to make it clear they did what they could. Ultimately, the SM acts on the advice of the committee, so long as what they are being asked to do is legal. The committee can ask the SM to do any of the delegated functions that are mentioned in the management contract but the SM can’t demand to do a committee function if the committee wants to do that function itself.
To maintain a good professional relationship, I suggest that the committee should keep the SM informed so the SM can satisfy themselves that those functions the committee has taken back to itself are being carried out.
Not sure about not having contents insurance – no liability coverage inside and outside of the lot!!?!!
Indeed. Contents insurance is useful beyond covering your stuff at home. Most contents insurance policies provide a general liability coverage, even for things like running into someone while riding a bike in another city.
Something tangential to keep in mind perhaps: If the laundry is on a ground floor close to the parking and if I have understood correctly that there are individual power outlets that go back to the meters of individual units, it might be relatively easy to sort out electric vehicle charging. It might not cost much to get an electrician to extend or reroute the cables to outlets in the allocated parking spaces of each unit.
This will get you around the added hassle of sorting out how to meter electricity consumption for vehicles. With everyone connected to their own units, everyone can sort themselves out via their own electricity accounts. Early adopters need not be held back by others who don’t want to co-operate etc.
Don’t let anyone tell you that EV charging needs high powered outlets such as 32A or 7kW. Even though many newer EVs have on-board chargers capable of charging at 7kW, they comply with standards that allow them to run off an ordinary 10A power point with an appropriate adaptor, usually supplied with the car. I have been driving EVs for a decade and we now have two electric cars in our household and we have always charged them from an ordinary 10A power point.
A ‘privacy screen’, if it actually has an effect on privacy, is necessarily visible from outside the lot.
Reminds me of a long story that I won’t relate now about a privacy screen erected without permission to prevent overlook from a window that could not actually be seen out of. The screen was eventually removed after wasting a great deal of the time of committee members and the Tribunal and Magistrates Court.
So, does NSW have a correct and proper formal means to lodge an ‘absentee vote’ as can be done in the ACT?
Here in the ACT, we don’t have a form precisely specified by regulation as, I think, is the case in NSW. However, a meeting notice must include proxy and absentee voting forms. In practice the two functions can be conflated on a single form. The layout of the form our OC uses lets an owner appoint a proxy, with or without directing their vote on some, none or all of the listed motions or the owner can indicate their absentee vote as yes, no or abstain on the listed motions without appointing a proxy. The difference between an absentee vote and a directed proxy appointment is that the proxy can also vote on any unlisted procedural motions or motions to amend a listed motion.
In principle, I could appoint a proxy to vote on my behalf as they see fit except for one motion where I might direct my proxy to vote a particular way on the form. On occasion, I have voted twice one way, for myself and as a proxy, then voted the other way as proxy for someone else since that is how I was directed.
If you were in the ACT, what you describe would be ‘an absentee vote’, which is quite distinct from appointing a proxy to vote on your behalf. Our strata Act provides for both. Could it be that your ‘proxy’ appointment form actually functions as an absentee voting form if there is no person named as proxy?
I would check with the strata manager that they agree with the advice you received from Fair Trading. If so, you could go ahead with your intended absentee vote in expectation that the manager will advise the chair of the meeting that yours is a valid vote, should that be necessary.
I am not so familiar with NSW. I suspect that ‘qualified request’ would refer to a provision similar to one we have in the ACT whereby a petition of 25% of owners requesting a general meeting and stating the topic to be considered compels the secretary (or committee) to call a general meeting.
In many OCs the secretarial function of managing the mechanics of calling the meeting is outsourced to a strata manager, but the buck still stops with the committee.
“…It’s not the parking so much, it’s the actions of the SC members. Can they continue to berate me in person and by notes for something they have no remit over…”
The only reason I can think of for an SC member to address you on this matter in their capacity as an SC member (rather than as a private citizen) would be if parking in this location outside the OC property somehow impeded access to the OC property or interfered in some other way with the use and enjoyment of the common property by residents.
In the absence of some justification along those lines, then, if they were in the ACT, they might be in breach of the Code of Conduct for executive committees. The general principles are reasonable to expect of a committee anywhere, even if they are not set out in statute. These include:
“An executive member must not—
(a) cause a nuisance on the land; and
(b) otherwise behave in a way that unreasonably affects a person’s lawful use or enjoyment of a unit or the common property.”
and
“An executive member must not engage in unconscionable conduct in exercising the member’s functions as an executive member.
<b>Examples</b>
1 improperly using the executive member’s position on the executive committee to gain, directly or indirectly, an advantage personally or for someone else
2 exerting undue influence on, or using unfair tactics against, the owner of a unit in the units plan”
In the ACT’s default Rules, ‘owner of a unit’ is defined broadly to include tenants.
I suggest you could remain silent on the matter of the legality of parking and simply send a reply copied to both the SC and managing agent pointing out that the location where you sometimes park is not part of the common property and they should therefore desist from harassing you over a matter that is outside their area of responsibility. I would leave it very short and to the point.
If you are confident that the strata plan clearly shows that the place you are parking in is not part of the common property, then I would write a brief response that says just that. I’d copy in the executive committee too since they might be fired up to fight a battle that they don’t realise is outside their area of responsibility.
Assuming you are correct, I suspect that the strata manager is being lazy and has not consulted the strata plan. A strata manager should consult the strata plan as their first port of call on any question like this but sometimes they don’t. Eg. Our OC had a serious issue linger unresolved for years because a former strata manager had advised an executive committee that an area was not common property when it was.
As for anonymous notes, not much you can do. If you believe you are parking legally on a public road you could report the letting down of tyres etc to the police. If you are not parking legally, then you probably don’t want to draw attention to that. Nonetheless, it is not the responsibility of the Owners Corporation to police parking that is not on its common property, though the OC or any individual could make a complaint that could lead to more frequent inspection of the area and parking fines. If the area looks like it was intended for parking, you could write to the local council and ask them to put in signage that would make it clear that it is a legal place to park.
Seek an interim order from the Tribunal that he must not alter the common property. In background information for the Tribunal you would include the minutes of the meeting at which approval was sought and declined. Include a copy of any correspondence in which he threatened to proceed or a statement that such a threat was delivered verbally.
You could also seek a separate order that the already altered common property be restored.
An option open to the owner would be to seek an order to give effect to his failed motion to be allowed to move his front door. You can choose whether or not to point that out to the owner. The owner might be able to make a case that it was unreasonable to not be allowed to move the door.
This has been split to a new topic.
There are several questions here.
Any member of an owners corporation is able to propose a motion for a general meeting to decide.
The chair of the meeting could rule that a motion can’t be put for various reasons:
-It might not be worded in a way that is sufficiently precise. Generally a motion has to be a proposal that the owners corporation does some clearly defined thing. Eg. “That the owners corporation purchase a timber garden seat for no more than X dollars and installs it next to the BBQ area.”
-It might be a motion that proposes that the OC do something that it can’t do. Eg. the OC can only act or spend in certain ways set out in the Act. It can’t decide to spend money sponsoring the local football team.
-Certain types of motion require certain notice periods. If the meeting papers have gone out notifying the owners of the meeting with an agenda, it might be too late to add anything. It is not proper for a chair to accept motions when there is insufficient time to notify owners that the matter will be included on the agenda. No motions should be accepted from the floor of the meeting other than procedural motions. The point of giving notice of a meeting with an agenda that won’t have other stuff added at the last minute is so that owners can decide whether to drop what they were planning and attend the meeting or not worry because nothing of concern to them is being proposed.
-If an individual wants to put a motion, they should find somebody to second the motion. If only one person is interested in having a motion put, the chair can dismiss it if nobody will second the motion. Seconding a motion is only to demonstrate that at least two people think the proposal should be discussed and voted on. One might second a motion that one then votes against just because one thinks the matter should be ventilated and put to bed once and for all. Motions put by the executive committee are presumed to be seconded because a majority of the committee agreed to them being on the agenda sent out with the meeting notice.
-Some classes of motion do require an unopposed resolution. Eg. in the ACT, it requires an unopposed resolution to grant a ‘special privilege’ to a unit for exclusive use of an area of common property. However, an expectation that the motion will fail is not a reason to refuse to put the motion to the meeting. [Where I live such motions have been put and failed because a very small fraction of owners opposed but we then sought and received orders from the Tribunal that gave effect to the motions on the grounds that opposition to the motions was unreasonable.]
Without knowing what you propose and the timing, it is hard to know whether the strata manager is advising you correctly or not.
I hope that helps.
There are generally default rules/bylaws/articles in state and territory strata legislation which say general things along the lines of “A unit owner must not use the common property, or permit it to be used, to interfere unreasonably with the use and enjoyment of the common property by an owner, occupier or user of another unit.” This is the ACT version but I expect it is similar elsewhere. Another default rules says “In these rules … owner, occupier or user, of a unit, includes an invitee or licensee of an owner, occupier or user of a unit.” This means that tenants must comply with the rules of the owners corporation, not just owners.
So, on the face of it, the person verbally abusing you is contravening an owners corporation rule – being shouted at interferes with your enjoyment of the common property. You could ask executive committee to issue what in the ACT would be called a ‘Rules Infringement Notice’ or similar term elsewhere.
In the ACT, and possibly elsewhere, the Act says: “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.” So, the Rule Infringement Notice could be sent to the owner of the unit as well as the tenant. If the unit is let via an agent, the notice could be sent with a covering note to the rental agent. It might not be the first complaint that the agent has received about this tenant.
I can’t say whether it would be better to attempt this route via the strata committee or whether a direct complaint to the police would be preferable. Perhaps both. A verbal assault is illegal even if it occurs on private property, i.e on the owners corporation’s common property.
Of course there is always the difficulty that it is your word vs the other party with no witnesses and the committee might be reluctant to play policeman. In case it happens again or escalates, it might be worth at least putting a complaint in writing to the committee with reference to the relevant owners corporation rule. It may then be taken more seriously if this problem continues or a later instance is witnessed or it happens to someone else.