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I agree with JT. Whether the parking spaces are common property or part of the lot, the shed is an unreasonable interference with the neighbour’s reasonable use and enjoyment of their space. Most rules/bylaws would have generic rules about not interfering with reasonable use and enjoyment of another’s lot or the common property.
In our OC an explicit condition attached to the allocation of parking spaces is that their primary purpose is for the housing of vehicles. Storage of other stuff is permitted subject to a whole lot of restrictions about safety, not interfering with access and reasonable use, limited quantities so as to not be unsightly etc. The OC has the power to remove stored items if the unit owner does not do so within a certain time of being told to do it in writing.
PS. In the matter I referred to, right at the start during the directions hearing, the unit owner was concerned about the penalty provision in the Unit Titles (Management) Act 2011. She asked “Can I just pay the fine and keep ‘the structure’?” The Tribunal member may have raised one eyebrow slightly and she said deadpan: “But then the Infringement Notices will keep coming.” IE. The committee could keep issuing new Infringement Notices because the unit owner would be continuing to infringe the rules. Each time OC could apply for the fine to be applied.
Instead we did not apply for the fine but we just applied for orders that the unit owner remove the structure by such a date as the Tribunal considered reasonable. Still, we then had to follow up with seeking an ‘enforcement order’ from the Magistrates Court to appoint the OC (‘another person’) to do that which the unit owner had been ordered to do but failed to do.
I am not sure whether the ACT Tribunal can impose a fine for failing to comply with a Tribunal order. I suspect, like the enforcement orders we sought, that might have to go to the Magistrates Court.
I don’t think I find the Tribunal reasoning unclear.
I think they are saying:
The OC can seek an order for a person to rectify some by-law breach and/or pay a fine for that breach.
The authority for the Tribunal to make the first order comes from the Strata Act.
If the order is made but the lot owner does not comply with the order, then the OC can apply for a further order that the lot owner be fined for failing to comply with a Tribunal order.
The authority for the Tribunal to make this second order comes from the Tribunal Act. It is not needed specifically in the Strata Act, since it could be applied to any instance of failure to comply with a Tribunal order, not just in Strata matters.
I assume that the penalties are specified in ‘penalty points’ whose value is adjusted occasionally to keep up with inflation.
Is your issue, Jimmy, that the financial penalties go to general govt. revenue rather than to the OC? If so, this does not strike me as odd from familiarity with the ACT situation. Here, a penalty for committing the offence of failing to comply with a valid ‘rules infringement notice’ goes to general revenue, just like the fine for an offence against any other Act would. Ditto for any further penalty that might be applied for for a failure to comply with a Tribunal order.
Our committee chose to not apply for such penalties in a recent matter. First we got orders that the unit owner must remove the structure and reimburse the OC’s Tribunal application fee but we didn’t ask for the penalty (up to $750, from memory). Then, when the unit owner reimbursed our application fee but still did not remove the structure, we applied for an enforcement order that would have let the committee appoint a representative to enter the unit area and remove the structure, but again, we refrained from also applying for the financial penalty for failing to comply with the Tribunal order. We only applied to be reimbursed for the cost of our court application fee.
In communication about the matter with owners, we made it clear that we could have applied for both fines to also be applied. This was about being seen to be focussed on the outcome rather than being punitive. Nonetheless, we did emphasise that this matter illustrated that the OC rules were enforceable through the courts if necessary.
There are Australian Standards on car parking. I can’t quote precisely but I did read much of it a few years ago. One principle in carpark design is that a space should be wide enough to open the car doors. If the space has a wall or other tall object adjacent then the space must be wider than if it can be assumed that a few 100mm can be ‘borrowed’ from an adjacent parking space. Consequently, end spaces against a wall might be a minimum of 2.7m wide to meet the standard whereas the spaces with other spaces to either side might be 2.4m minimum.
So, putting a cupboard up within one parking space along the boundary could be interfering with reasonable use of the adjacent parking space.
I also recall a complex diagram showing that, if the spaces were not of constant width, they could be narrower at the nose end so long as they were wide enough around the middle where the doors tend to be. So, a short cupboard, not full length, might be OK along a parking space boundary.
I would say that if the space is less than 2.7m wide, erecting a vertical barrier along one side would cause that space to no longer comply with the Australian Standards on parking and that would provide objective reason by which to decide that the cupboard placement is causing unreasonable interference.
@scotlandx said:
…I wouldn’t worry too much about the timing, you can always say in the minutes that the owners have considered the by-laws.I also would not worry to much about the timing. The minutes could record (more accurately) that the OC was trying to review the by-laws but relevant motions had to be deferred due to the managing agent failing to provide sufficient supporting information. It would be clear to anyone who cared to inspect the record that the OC was trying to do the right thing and only frustrated by a slack manager.
@scotlandx said:
…You have highlighted a gap in the legislation – if a proxy is a directed proxy, i.e. the proxy specifies how the proxy must vote, then it shouldn’t count to the maximum number of proxies a person can hold, because they have to vote that way. (the Corporations Act and ASX Listing Rules have provisions that provide for this, and also re the Chair holding proxies)Does NSW have an ‘absentee voting’ option as an alternative to appointing a proxy?
In the ACT, the executive committee must approve an absentee voting form and a proxy appointment form for each general meeting. The two functions can be combined into one form. We don’t have a limit on the number of proxies that can be held by one person.
Our OC generally has one form because people were confused when there were two. By filling in or crossing out various parts you can 1) appoint a proxy with full powers to exercise your vote as they see fit, or 2) appoint a proxy who is directed how to vote on some or all of the motions but can vote as they see fit on any motion to amend a motion or any procedural motion or any listed motion where you have not directed their vote, or 3) just cast your absentee vote (yes, no or abstain) on each of the listed motions without appointing a proxy.
I would be suggesting that the following bylaw be proposed for adoption at the general meeting:
“(2) An owner or occupier of a lot must not permit any child for whom the owner or occupier is responsible, unless accompanied by an adult exercising effective control, to be or remain on common property that is a laundry, car parking area or other area of possible danger or hazard to children.”
Then, if the problem persists, you have a breach of a bylaw that is clear and explicit and recently adopted in the light of the current problem. That should make it far easier, if necessary, to demonstrate to both insurers and the Tribunal that the OC has considered the matter and is taking action.
BTW. If there are areas of common property in which children can generally play harmlessly, then I would adjust the wording to just exclude the carpark. I would not want children to be prevented from having harmless unstructured unsupervised play.
@Imogen Bannister said:
… I, the Secretary, called a Strata Committee meeting in relation to a minor renovation… The Strata Committee was very careful to follow due process. However, the Strata Manager got most irrate. We were shocked at his reaction and decided it must be because we had inadvertently avoided having to pay for a meeting. We pointed out that we followed due process and were entitled to call a Strata Committee Meeting as a result of the special resolution at the AGM…Not only that. The committee is entitled to have a (properly convened) meeting any time it cares to do so, with or without the strata manager. Remember the manager is there to provide a service to the owners corp, not the other way around. The buck stops with the committee so it should have a meeting any time it believes there are matters that require its attention, whether that suits the strata manager or not.
The SC has to be a little more assertive. The SC can discuss anything it cares to and the chair should retake the reins if necessary. There is no reason why you can’t convene a meeting without the manager if it would be easier to discuss the matter that way.
Insist that errors in the minutes be corrected before they are accepted by the next meeting.
In the ACT, the Tribunal can give orders that money be paid or that a person must do or not do some thing. However, it can’t enforce its own orders. Instead, that function falls to the Magistrates Court.
I have experienced that once. An owner added an unapproved structure to her unit. We have a (somewhat customised) rule in place that includes that unit owners must not alter the unit without permission. The committee first spoke to her and then wrote to her about removing the structure. After some back and forth about why she thought it was reasonable and did not need approval and why we disagreed and would not approve it, the committee issued a ‘rules infringement notice’ (aka ‘notice to comply’ in other places). She did not comply and the Tribunal gave the orders we sought, which were that she must comply with the rules infringement notice by a certain date. The date passed and she had not complied.
At the Tribunal I asked what we could do in the event that we got the orders we sought but the unit owner did not comply with those orders. The Tribunal advised that we would then need to seek an enforcement order from the Magistrates Court because the Tribunal could not enforce its own orders.
The unit owner tried to use the Magistrates Court as an opportunity to have the whole matter reconsidered. The magistrate shut that down very quickly. He was only interested to know if there had been some reason why the unit owner had been unable to comply with the Tribunal order. He emphasised that the facts of the matter had all been determined already by the Tribunal. He gave orders that the OC could enter the unit area to do that which the unit owner had been ordered to do by the Tribunal but had failed to do. In effect that meant the committee could appoint an appropriate tradesperson as its representative to enter the unit and remove the structure.
At the 11th hour, the unit owner finally got her own tradesperson to remove the structure.
Just a by the way: Even if particular functions have been delegated to a strata manager, the committee can still exercise any of those functions at any time. So, for example, the manager might generally chair meetings but the committee chair might exercise that function while the committee or a general meeting is discussing appointment of a strata manager. The treasurer might take a more active role in the finances of a particular project even while the day to day stuff is left to the manager. And so on. Remember the manager takes directions from you, not the other way around.
I believe the legislation requires the committee to elect people to those positions (certainly in the ACT of which I am more familiar). Once you have those positions, responsibilities all interact. The committee is responsible to supervise the treasurer, for example. So, if something financial goes wrong, it is not just the treasurer’s fault.
The committee can delegate many functions to the manager but the buck still stops with the committee. So, for example, the manager might be delegated all the mechanical functions of the treasurer – such as keeping financial records, paying bills, reporting to the committee and the general meeting – but the treasurer and committee still have responsibility to oversee that treasurer function and satisfy themselves that the manager is performing that function adequately.
If no-one will put up their hand to be treasurer, then, in effect, the whole committee is treasurer with responsibility to oversee the manager’s exercising of the treasurer’s functions.
I once had a conversation with our strata manager about what would happen if nobody would put up their hand to be on the executive committee. Her answer was that she would keep running the mechanical things that her contract allowed her to do but every time a decision was required, she would be obliged to call a general meeting. In the absence of an executive committee, the only other way for a decision to be made by the owners corporation was by having a general meeting. She said that she would make sure that enough general meetings would be called that enough people would get sufficiently fed up that they would form a committee to restore normality.
I was unaware NSW was so prescriptive about meeting procedures. The ACT act provides far less guidance, leaving us to follow generally accepted meeting practices such as proposing and seconding etc.
The quote from LP seems unambiguous with plenty of ‘musts’.
I would have said “proposed by…” rather than “requisitioned by…” but that is just being pedantic. However, that leads to a question. Have these motions been ‘seconded’?
The point of having a proposer and a seconder is to test whether there is at least one other person who wishes to see the motion debated and put to a vote. The chair could also dismiss the motions if nobody seconds them. This is a standard meeting procedure to prevent time-wasting on matters that concern only one person.
Note that a ‘seconder’ is not obliged to support the motion. It is possible to second simply because you think it is better that the matter is debated and voted on, if only to see the proposal defeated resoundingly and put to bed.
As a general rule, I think the OC can (and in many cases, should) pay to ensure repairs to the common property are made promptly, especially if safety (or a substantial loss of amenity to residents) is at stake and arguing about who is responsible would allow an unsafe condition to persist. After dealing with the immediately pressing safety issue, the OC should try to recoup the cost if they believe someone else was responsible for causing the need to make those repairs.