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An obligation or responsibility of a past owner of a unit is inherited by the new owner of the unit. If levies are owed, the new owner is liable for them, for example.
In the case of the old owner leaving stuff behind on the common property, it is not fair but probably the only option is for the OC to dispose of the rubbish and wear the cost.
Without specifics it is hard to answer the questions. What is ‘fair’ depends on what you are talking about.
If you are taking part in decision making as a member of a committee you have to act in the interests of the OC. If you are voting at a general meeting of the OC, you can vote in your own interests.
I would suggest that if you have a conflict of interest as a committee member, you should 1) disclose that conflict and 2) abstain from voting on the committee on the particular matter, and 3) possibly absent yourself from committee discussion of the matter.
I also suggest you should make sure the committee minutes record that you absented yourself so that you can later show that you acted properly, should that turn out to be necessary.
I would not say you should always be protecting the OC bank balance at all costs. Sometimes the OC should spend. For example, the OC has an obligation to maintain the common property. If something is a significant safety risk, you should spend the money to fix it promptly and worry about recouping the cost later.
If a majority of owners don’t want to spend the money because they are cheapskates but a danger is clear and present and you are on the committee, fix the risk first and worry about the rest later.
Even in the absence of a specific bylaw, you probably have a general one about not interfering with reasonable use and enjoyment of the common property. Leaving rubbish that cannot be easily disposed can easily be argued to detract from the enjoyment of the common property by other members of the corporation.
I would expect that most jurisdictions hold the owner and a tenant to be separately and jointly responsible for breaches of the bylaws/rules/articles.
The list of works sound like a mix of some things that should be attended to with some urgency and other things that should be done but can be part of a staged program of works. Eg, nobody will die if interior painting is not done immediately. So, why not have a series of levies anticipated for every quarter over a couple of years to enable all the works to be done without such a large levy increase.
If this were the ACT, it would be an ordinary resolution to amend the sinking fund plan to change the schedule of anticipated levies and to add these various works to the planned maintenance over the next several years, certain safety matters immediately, other items next year, the least urgent in year 3.
@Stratademocrats said:
We don’t have any motions that we want to be voted on.A motion could be along the lines of: ‘That the executive committee, by (some date), must provide owners with a written account of the reasons for its decision to do X, addressing each of the concerns raised in the attached background paper.’
A motion can only be that some body does some thing. The above suggestion would compel the committee to do the thing you apparently want, which is an explanation.
I’d just ask your questions now. You don’t need to wait for a general meeting. You can ask your committee a question any time.
If you don’t like their answer and if the matter can be put in the form of a motion then you could do that. Most meeting rules would require that you give notice so it can be included in the meeting papers distributed with the notice of the meeting. Your motion should be seconded by someone, ideally someone you have appointed as your proxy for the meeting.
If it really is a matter for discussion only, then I think your proxy has to be ready to speak on the matter. Our AGM agenda routinely has an ‘Other Business’ item which is divided into two parts, 1) Discussion of matters notified to the managing agent before (some date), and 2) Discussion of any other matters, if time permits.
I.e. The chair can exercise some discretion about whether to allow the meeting to hear someone raising a matter that was not notified but any notified matter gets a hearing. NB. ‘Other Business’ should only be discussion. At most the minutes might record that the ‘mood of the meeting largely supported (some view)’. This is because the meeting can only pass resolutions on notified motions.
Fortunately, our OC (a set of townhouses in the ACT with an interesting but different parking history) has not had much of this as a problem so I am not especially up to speed.
JT mentions s.115. This is relevant. While often ignored, you could start getting pedantic about it for a while it would help. Subsection 2 says that subsection 1 operates like a rule, which is ACT-speak for ByLaw. So, you can enforce it, or threaten to do so.
I agree that you could establish a rule as JT suggests. That requires a special resolution of a general meeting – A majority in favour and fewer than one third opposed. Let’s say you have 150 units. 100 take part in the meeting in person or by proxy or absentee vote. Of the 100 units represented at the meeting: 65 (>50, a majority) vote in favour, 30 vote no (fewer than one third of 100) and five abstain. That passes as a special resolution. The resolution only takes effect after it has been registered with the Land Titles Office.
The time taken to discuss what would be reasonable in a rule could have the useful effect of establishing some reasonable, expected norms, even before you have a rule in place. If you are a small OC, you might have an informal meeting of all owners to kick ideas around. If you are a larger OC that might not be practical and you might need to mail out a discussion paper, invite comment etc.
Assuming your OC has the default rules, you might use rule 5: “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.” Note that rule 1 includes “owner, occupier or user, of a unit, includes an invitee or licensee of an owner, occupier or user of a unit.” From s.107(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.”
Using rule 5, just with the most unreasonable offenders could avoid getting bogged down in the difficulty of coming up with a perfect, perhaps impossible, rule that allows every conceivable reasonable use of the visitor parking while prohibiting every unreasonable use. [Perhaps a unit’s longer staying visitor is not unreasonable if it does not happen frequently.]
Habitually unreasonable parking would be a breach of rule 5 because it interferes “unreasonably with the use and enjoyment of the common property by an owner, occupier or user of another unit” by making it difficult for their visitors to park. If the OC has promulgated some informal guidelines on what is reasonable and not reasonable, it might be safer to use rule 5 occasionally rather than tie the OC up in knots over finding the perfect specific visitor parking rule.
115 Corporate register—provision of information
(1)A unit owner must give the owners corporation for the units plan written notice of the details of any of the following events within 14 days after the event happens:
(a)the owner entering into an agreement to transfer the lease of the unit to someone else;
(b)the lodgment for registration, by the unit owner, of the instrument under which the person became the owner;
(c)a change in the owner’s name or address for correspondence;
(d)a change of occupancy of the unit;
(e)a vacancy in occupancy of the unit that is expected to be longer than a continuous period of 30 days.
Note Information about representatives of units owned by 2 or more part‑owners, or by a company, must be provided to the owners corporation under the following sections:
• s 11 (Part-owners of units—authorisation of representatives)
• s 13 (Company-owned units—authorisation of representatives).
(2)Subsection (1) may be enforced in the same way as a rule of the owners corporation.
(3)The Crown lessee for a declared land sublease must give the owners corporation for the units plan written notice of the details of any of the following events within 14 days after the event happens:
(a)the Crown lessee entering into an agreement to transfer an interest in the Crown lease to someone else (the new owner);
(b)the lodgment for registration of the transfer;
(c)a change in the Crown lessee’s name or address for correspondence.
(4)A person, other than a unit owner, may give the owners corporation written notice of the details of the following events:
(a)the person agreeing to transfer an interest in the lease of a unit or the common property to someone else;
(b)the lodgment for registration, by the person, of an instrument under which the person acquires an interest in a unit or the common property;
(c)the person acquiring an interest in a unit or the common property other than a registered interest;
(d)if the person has an interest in a unit or the common property—a change in the full name or address for correspondence of the person;
(e)a change in the nature of an interest held by the person in a unit or the common property, including the person’s ceasing to have the interest.
Note Information about mortgagees’ representatives must be provided to the owners corporation under the following sections:
• sch 3, s 3.23 (Voting by mortgagees)
• sch 3, s 3.24 (Mortgagee voting notices—amendment and revocation).
It will, or at least should, count in your favour that the matter has been put to not one but 4 meetings and every time was supported by all but one owner, some minor procedural irregularities notwithstanding.
As suggested above, if you want to get rid of the old bylaws, not just add new ones, you could have a single motion to both rescind the existing set and adopt your preferred replacement set.
Why not just put a motion to a general meeting to adopt whatever set of bylaws you want? Then, if it passes, that great. If it fails but was supported by every owner except the developer, you then seek an order from the Tribunal to give effect to the failed motion on the grounds that objection to the motion is unreasonable.
I assume NSW has a provision for doing that. I am familiar with the ACT law, which does. In the ACT the Tribunal does a merits review of the failed motion. That is, it looks at the proposal and determines whether it would have been reasonable and preferable for it to have passed. The Tribunal does not determine whether the person objecting was being unreasonable. It is only concerned with determining what the best outcome would have been.
If your proposed by-laws are identical with the model bylaws or closely modelled on them, you can argue that is clear evidence of their reasonableness. If the argument is uncomplicated and you have demonstrated by the vote that every owner except one is in favour, you should be able to get a good result out of the Tribunal at little cost without needing a lawyer.
I suggest that putting the motion to a properly notified general meeting is the first step. Make sure you have every owner take part, in person or by proxy. I think the Tribunal will want you to demonstrate via proper general meeting minutes that the motion has unanimous support (except for the developer) and that you attempted to amend the bylaws via the correct process before seeking a Tribunal order.
@JimmyT said:
@strats all said:
Due to the urgent nature of some of the repairs I think the way to go is to document everything, have the repairs done now by the body corporate and then pursue costs.Sounds like a plan. I think it has been established in law that, in the event of a delay, the Owners Corps’ first priority is to effect repairs then find the person responsible for the damage and get them to pay for it (rather than the other way round).
Agreed. It demonstrates to the Tribunal that the OC takes its statutory obligation to repair and maintain the common property seriously, but that does not mean it should not then seek to recoup its reasonable costs. It needs to demonstrate that they were reasonable. Hence documentation.
Yes, class B units in the ACT: Repair and maintenance of the whole unit, roof, gutters etc, is a unit owner’s responsibility. I don’t think this is an insurance claim unless it was somehow extraordinary storm damage and the gutters being less than pristine was only incidental.
In the ACT Class B = townhouses (generally). Class A = flats (generally). It is about whether the strata run vertically or horizontally.
If the buildings are of a certain age, those fibro sheets under the eaves are almost certain be asbestos and require specialist removal.
If you make an insurance claim but can identify who did the damage, the insurer might recover their costs from the culprit. More likely they won’t and might increase your premium.
Alternatively, perhaps a better approach, you could make sure you have everything well documented with dated photos, witness statements, quotes for repairs etc then go to the tribunal seeking an order that the unit owner must pay to the owners corporation the cost of those repairs.
This is outrageous. A child riding a scooter on a residential driveway during daylight hours is very unlikely to be causing unreasonable noise. Instead, this is normal life. People cannot expect to live in close quarters with others and see and hear nothing of them. I enjoy seeing and hearing the children of various neighbours riding their bikes and scooters on the path past our units.
Follow JT’s advice re ‘doing the numbers’. If you talk to your neighbours, you might find they have been told off for other imaginary infringements too.
@Cosmo said:
Our insurance went up considerably also. We use a broker and I rang and asked why. They said it was the cheapest they could get. They got us two other quotes but both were more expensive.My experience over a decade of being on our committee plus observing a few years either side is that insurance costs go up over a few years, usually gradually but occasionally in a big jump, even using a broker. Then we would get a wind-fall of a sudden, substantial drop and then the cycle would repeat.
Perhaps every few years someone in the market decides to price competitively and the others follow, then for a few years they don’t compete.
I don’t think it is right that an insurer determines the value of a building. Has the insurer done a valuation? mostly we just find they increase the previous years value by a %…
Increasing the valuation by a few % each year in line with the insurer’s recommendation is a reasonable thing to do if the start point was an independent valuation and that valuation was not to many years earlier.
This doesn’t address who is responsible but a tempering valve is part of a practical solution. For those who don’t know, if the water supply is above (I think) 50oC to bathrooms, it must be ‘tempered’ by a device which automatically mixes in some cold water to bring the temperature down to a safer temperature.