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I think the principles in the ACT are the same as NSW and elsewhere. In general there is no obligation to bring a structure up to the current code if it is safe and well-maintained. On the other hand, if there are substantial repairs required, not just simple maintenance, then the new work would need to meet the current standards. Eg. you might have a balcony where the balustrade met the standards at the time of construction. If you are just doing maintenance, say replacing a few pieces of timber or repainting, it is OK so long as it continues to meet the old standard. However, if you need to make more major repairs, more like rebuilding, then you need to meet the current standard.
As it happens, our OC had a situation a few years ago where two private carports on class B unit subsidiaries had brick walls that were bowing and cracked to the extent that they were unsafe and could collapse, which would bring down the roof and could have killed someone. The cause was that the walls were acting as retaining walls for soil on the adjacent common property. While the walls had been correctly constructed as retaining walls, the common property (reactive clay) soil had been replaced without providing subsoil drainage and the depth of that common property soil had been allowed to increase over years to a greater depth than the walls had been designed to retain.
The OC agreed that the damage to the private property was caused by a defect of the common property and so it was an OC responsibility to rebuilt those carport walls and to do so to current standards.
Anyway, back to your carports. What prompted getting an engineer’s report in the first place? If the carports were built to the standard relevant at the time of construction and have been maintained to that standard and if they are not failing in any way, then I would say there is nothing to be done.
If they are failing in some way and need more than simple maintenance to be made safe and/or just not fall down, then the new work would have meet current standards. The easy answer from an engineer is, of course, to say build a new structure to current standards. Another engineer might well be able to advise some remedial work that would be sufficient as you seem to suggest. If a modification would mitigate some safety risk and could be easily made then you should do it in any case.
We had a similar situation with playgrounds. Even though it seemed that relatively few things needed fixing, nobody we approached was interested in a solution that would fix our old but well-loved mainly-timber equipment. They just wanted to demolish and replace with boring equipment like the kids would experience anywhere else. We were lucky to find one person who was appropriately qualified to restore and modify our equipment to meet current standards.
In the ACT, the strata manager for a units plan is the one person who cannot be appointed as a proxy for any owner.
I agree with Jimmy. The owner’s argument is undermined by the fact that she appointed a proxy. The purpose of a proxy is to attend and act in your place. She appointed a proxy. So, it is self-evident that she has not been denied any rights.
Yes, I would complain. They should flag something like this sooner. As treasurer I made a point of checking such things myself too. Sometimes the manager picked up a high water bill, which was due to leaks we got every few years, and alerted me. Other times they didn’t comment. Depended a bit on which manager we had at the time. Some were more diligent than others.
@scotlandx said:
I can see where you are coming from Sir Humphrey but the by-laws apply to all the owners and residents, and govern the behaviour of the residents and common property. Any code of conduct applies to the members of the Strata Committee in that capacity and therefore if you wanted one (although I don’t believe you should have one) you would need to keep it separate.I am not sure I agree with this logic. All members of the OC are potential committee members (subject to being elected etc) so a code of conduct applies to all and any member if and whenever they happen to be on the SC/EC. I’d say this is not unlike a rule/bylaw that says something about what you can do on a balcony. It is general in that it applies to every unit that has a balcony. The generality is not negated just because in a particular OC there might be some units that don’t have balconies.
In resolving to adopt (say) the ACT code of conduct, a general meeting of the owners would be instructing its committee at any time to operate a particular way. I would argue that the OC has the power to direct the SC/OC in any way that is not contrary to the Act or other legislation. I think it would also have the power to thereby make it a breach of the bylaws (an infringement of the rules in ACT-speak) to act contrary to the code it has adopted. That would enable a clearly specified process to be brought into play (or at least threatened) if a committee or committee member behaved badly.
I agree with Austman, the Victorian provision is succinct and summarises the duties of Strata Committee members. I don’t know why they didn’t include something like that in the NSW legislation, they took long enough to produce it.
The ACT code is not much longer:
Executive committees—code of conduct
1 Understanding of Act and code
An executive member must have—
(a)a commitment to acquiring an understanding of the Act, as relevant to the member’s role on the executive committee; and
(b)a good understanding of this code.
2 Honesty and fairness
An executive member must act honestly and fairly in exercising the member’s functions as an executive member.
3 Care and diligence
An executive member must exercise reasonable care and diligence in exercising the member’s functions as an executive member.
4 Acting in owners corporation’s best interests
An executive member must act in the best interests of the owners corporation in exercising the member’s functions as an executive member, unless it is unlawful to do so.
5 Complying with Act and code
An executive member must take reasonable steps to ensure that the member complies with the Act, including this code, when exercising the member’s functions as an executive member.
6 Nuisance
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.
7 Unconscionable conduct
An executive member must not engage in unconscionable conduct in exercising the member’s functions as an executive member.
Examples
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
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
8 Conflict of interest
An executive member must disclose to the executive committee any conflict of interest the member may have in a matter before the committee.
My contention is that one provision or another of the above would give a complainant something to hang their hat on if a committee member was behaving badly.
I think the safest thing for an OC in a state or territory without a legislated code of conduct would be to adopt verbatim the code of conduct from one of the other state’s or territory’s Act. It could be adopted as a by-law (Aka article or rule depending on the jurisdiction) that directs the action of any future committee member. A committee is bound to act in accordance with the direction of a general meeting resolution (unless it would be illegal).
That would get around the discouraging business of asking/requiring individual committee members to sign a bit of paper.
It would also reduces the risk of a home-grown set of words that it might be drafted with some non-obvious flaw. A code of conduct included in another state’s legislation would have survived considerable scrutiny. It might also be more readily supported by conservative owners for that reason – less risk of some unintended effect.
If a committee member then failed to act in accordance with the code of conduct, you have the option to invoke the processes for a rules infringement/breach of by-laws. Following a process set out in legislation is more likely to be upheld if challenged than some home-brew concoction.
@Lady Penelope said:
… It’s a pity that NSW didn’t go down the same path as Qld by including a formalised Code of Conduct…The ACT (and perhaps others) also has a Code of Conduct in its Unit Titles (Management) Act 2011.
@Austman said:
@JimmyT said:
But for the first time we will have to address a national readership with all the myriad subtle (and not-so-subtle) differences between different states’ strata laws. My mind is already boggling.Great news!
I realise that NSW is around 30% of the Australian population but there’s still around 70% left! 🙂
One day (and it won’t be soon) there might even be “harmonised” strata laws. The state and territory governments have actually done that in several other important areas, so it’s not an absolutely impossible dream.
But until then we have at least 8 versions of strata law …
When I was young, I thought the states were a useless anachronism and we really only needed two levels of government, national and local, not three. [At that time I was entirely unaware of the 4th tier of government, the Owners Corporation.]
Now I think the states serve several useful functions. They provide safe-guards. For example, individual states can push on with renewable energy even while we have a federal government doing all it can to discourage investment.
A state government can try something without disrupting the entire country. If it works well, the rest can follow. It can be easier for some sorts of grass-roots proposals to get up initially eg. s.23 of the ACT’s Unit Titles (Management) Act is essentially my submission to a review of the Act based on the experience of just one OC. However, it is there now for other states to follow if they care to. I doubt I would have had the same influence on a national strata law.
That said, my experience is of the 2nd and 3rd tier of government being collapsed to one (ACT’s legislative assembly is both the local council and state functions). It can neatly bypass some matters that are difficult to handle across tiers of government.
@JimmyT said:
…it sounds like theis whole scheme was set up so that the residential lots would subsidise the commercial ones. If you can show that’s the case, you should be able to get the Tribunal onside.A strata manager and/or lawyer might also be able to advise on a fairer and more reasonable distribution of unit entitlements so that a higher proportion of the strata levies are paid by the commercial enterprise appropriate to the costs they impose on the OC. What percentage of your insurance, electricity, water etc is for that lot?
Better still, almost certainly harder, is there some way to get a divorce? Could the owners corporation be split into two entities, each able to run its own affairs and pay only the bills required for the residential or commercial portions?
@Krusty said:
… young, high-ranking naval officer … is now a (first time) committee member who has taken it upon himself to become the buildings vigilante. I received a very pointed email … What offended me was his demands that we pay for the damage (obviously – we know that). Worse, he gave us a two-day period to guarantee it would be addressed, plus a deadline of four days for the remedial work to be completed.I have developed a pet theory that some high-ranking people (military and elsewhere) have little experience of working collaboratively with peers. Rather they are accustomed to doing what they are told by those superior and expect unquestioning obedience from those below.
For a first communication on a minor matter, I would expect a polite face-to-face conversation or email along the lines of: ‘This damage has been pointed out to the committee and we believe it was your tenant. We are pointing it out in case you had not been aware of it. We can arrange for the repair but we would then have to bill you for it. Could you please get in touch to discuss further? Here are our contact details…’ This takes a bit longer but tries to avoid offence. If that initial approach is ignored, then it is time to get heavy with deadlines to respond etc.
This is the Strata Managers jurisdiction & not his.
Actually, it is the committee’s jurisdiction to instruct the strata manager about how to handle such matters. I would have a quiet word to others on the committee and suggest to them that their new colleague is going to rub people up the wrong way and the whole committee will be tarred with the same brush. After all, ‘everybody knows’ that only ‘little Hitlers’ joins strata committees and that expectation will be confirmed in the popular imagination by the smallest things.
My concern though is about this extract: “On the agenda for the last committee meeting was the proposal that XXX be paid $5000 a quarter to run the building (over and above the Strata Manager’s fee)”. I was a committee member for over ten years & did not expect any recompense.
The question is can a committee member ask or expect this? If so then why won’t all committee members expect payment?
They can ask!
$20,000pa to be an on-site contact person seems like a very generous compensation, especially when you are paying for a managing agent already. For this to have any chance of success at the next AGM, I think it would need to be a very clearly spelled out proposal. I expect that most OC members will be very sceptical and have no idea how much work a dedicated committee member does. Even OC members who are sympathetic and appreciative don’t really understand how much we do.
Where I am, such a proposal would be very likely to fail. Some would object because they don’t think much work is done and they are still bitter because one committee ‘failed’ to attend to their pet gripe quickly enough 15 years ago. Others would object because they did their time on the committee for a year or two 25 years ago without payment so they feel they have done their bit. Others would say the committee should just let the manager do the job they are paid for (without understanding that the manager needs oversight).
At most, somebody not on the committee might propose a vote of thanks for the past committee at the next AGM and include a motion that some nominal amount from the budget be approved for each of the out-going committee to be given a bottle of wine or a dinner voucher. Even if one person did most of the work, it would have to be the same for all committee members. Often even the rest of the committee doesn’t appreciate just how much one person did.
ST. I feel for you and the dilemma you are in. You could try to wash your hands of responsibility but then you are 1/3 responsible no matter what. If you don’t do things like, for example, sorting out the water leak on common property, you damage your own interest. On the other hand, you are being taken advantage of. You can only be compensated with the agreement of the other owner. I think you can’t expect compensation for past voluntary activity. Perhaps you have to use this example to put the strata manager and the other owner on notice that you will not be available to attend to the next matter, whatever that may be. Ask the SM and other owner to propose a solution. It might be that the SM actually attends and deals with things, perhaps with a higher fee. It might be that they offer you a fee for responding on site – but let them come up with a proposal first.
Until you stop rescuing them, they won’t feel any need to engage constructively. So, give them warning now that you might not be available. If need be, invent a sick relative that you expect to need to visit regularly for extended periods in the coming year.
Seems reasonable to me. We are in townhouses but we recently adopted a rule (aka by-law) to put beyond doubt that each unit owner was responsible to maintain anything that only serviced that one unit, even when the equipment, conduit, path, driveway or whatever had been placed on the common property, with or without permission.
Part of a proper plan is a schedule of anticipated levies for each year of the plan. The idea is to have contributions only rising gradually, roughly in line with expected inflation, while expenses will be lumpy. Most OCs will have a small number of large expenses expected to occur infrequently. The idea is to smooth out the funding of those infrequent large expenses across past, present and future owners so that all contribute fairly and similarly.
Many OCs will be able to do their own plan. It is not hard to estimate future maintenance based on past maintenance costs for some items. For other things, you might get a quote or two. Our OC got professional advice for our 2010 plan but then we did things ourself when we reviewed and updated and documented it all rather better in 2015. For many items we could combine the professional cost estimates with our own experience to come up with numbers we could be quite confident about.
@JimmyT said:
Do you “get” the capital works fund? No, me neither…Actually, having done it, it’s not that difficult.
I know that it used to be called the sinking fund and you have to have a 10-year plan but renew it every five years (which sounds like a five-year plan to me).
For those in the ACT it is still called a ‘sinking fund’. Also, must cover at least 10 years but there is nothing to stop you anticipating that something will need doing 20 years from now and planning to accumulate about half the necessary funds over ten years.
Ours is designed for 10 years with 5 year reviews as required by the ACT Act. So, our present plan is for 2015-25 but in 2020 we should review it and extend it to 2030. IE it then becomes the 2020-30 plan.
And it’s for things like lift repairs … but not maintenance (or is it?). Confused? …
Early this year I resigned from our committee after being treasurer after 9 years. My successor stated to the AGM that our sinking fund plan was deficient because it did not provide for a couple of maintenance items. However, it had been noted in the annotation of our plan that these few items were funded instead from a line in the Administrative Fund budget for this category of maintenance. In my view, these were routine items that always cost a few hundred to a few thousand dollars every single year and they did not need to be part of the sinking fund plan. So long as they were being attended to and funded it did not really matter where they were funded – it cost the owners the same amount either way. At our recent AGM, the new treasurer put a motion to amend the sinking fund plan so that these items would be funded from the sinking fund. Consequently the levy for the admin fund was lowered a bit and the sinking fund increased a bit.
A generous interpretation would call this a trivial difference of style about which reasonable minds could differ and of little consequence. A less generous interpretation that was suggested to me was that the new treasurer made the change much as certain animals lift a leg to mark their territory.
What are your rules/articles/bylaws on erections and alterations? In my OC, the committee can approve but only because our rules have been amended to allow that. Default rules (in the ACT) require an unopposed resolution of a general meeting. A 3m shed is more of an erection than a bit of furniture. It might be that the committee has exceeded its powers.