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Hmm. Tricky. Tempting as it may be to look forward to a tidy bonus of interest when the unit eventually is sold, I would be inclined to try to track down the owner. I would worry that plan A might come unstuck somehow if there was no paper trail showing how the managing agent was directed by EC resolution to commence debt recovery action.
In the ACT and possibly elsewhere, the Act requires notice to be given to the OC if a unit is to unoccupied for more than a month. There might be insurance consequences if a unit is unoccupied but notice was not given. Contact details for the owner should be listed on the unit/lot roll. In the first instance, I would be asking the managing agent to work a little harder to determine if levy notices sent to that address are just being ignored or are the contact details wrong? Can the owner be easily tracked down?
I have no idea how you would do plan C. Whatever you do, you would need to have shown that you exhausted all avenues to find the owner and recover the levies. From the ACT Act, so I suspect it could be similar elsewhere, it is possible to recover as a debt from an owner reasonable costs associated with levy recovery. After the managing agent has done what they can, I suspect that could include a professional debt recovery service or action at the state Tribunal. Perhaps you can get an order that would seize other assets in Australia?
I think a variant of the strataphobe is the person who probably has rather strong libertarian tendencies who is affronted by the fact that an EC or OC can have any sort of say in what they do. On one hand they appreciate the integrated architectural design. On the other hand they think that people should be allowed to do whatever they like with the appearance of their unit. I suspect the two halves of their heads are not talking to each other!
Only 16 units! Heaven! Try consulting over a 100 units.
Why can’t the EC (which must be about 1 in 3 units anyway) just nominate a time at which anyone interested can stand around in the foyer and hear about what is suggested and throw in their own 2c worth? If it turns out that one generous person has offered to provide a nice table and a few pot plants at no cost to anyone else, and there is no safety issue (obstructing access or whatever), why not see how it looks? If it turns out nicely, then great. If it turns out that the plants die and the table is ugly, then nicely ask the person who put them there to take them away again.
Good point that the upstairs units are providing insulation to the downstairs units.
Also good point that it is in the OC’s interests to control the installation of the insulation on the common property and ensure a good job is done that does not risk other aspects of common property (no dislodging roof tiles, covering wiring etc.)
Perhaps better for the whole OC to do the insulation and perhaps then apply the same principle to some other improvements that might disproportionately benefit the downstairs units, just so everyone feels that it was evened out.
@kaindub said:
…Since a special resolution requires no vote to be cast against it, you have the power to oppose it.Not sure where the poster is from, but as far as I know, in all jurisdictions, a ‘special resolution’ requires, firstly, a majority in favour, and secondly, fewer than one quarter or one third opposed, in the cases of NSW and ACT, respectively. I this OC, with 4 units, it is possible that one vote against would not amount to a quarter and prevent a special resolution from passing if a ‘poll’ is demanded and the one person opposed has less than a quarter of the unit entitlements.
Now if the upstairs occupants want to raise a by law, include that they pay for the installation as well as maintains it.
That seems reasonable if the upstairs occupants are the only beneficiaries. If there is a stairwell or other common property with exposure to the uninsulated ceiling then that might not be the case. In that case a pro-rata arrangement by area might be more reasonable, perhaps 40% to each upstairs unit and 20% to the whole OC.
@tharra said:
…In my building, we’ve had a recent query delivered with a bit of outrage about something which has been discussed at the last 18 months of EC meetings & was a special resolution at the last AGM. Not saying that this is your Mum’s case but worth a double check.I hear you! [Of course, it is most likely not be the problem here.]
I think ‘lack of consultation’ is a perennial complaint. Ironically, the people making the complaint have in my experience generally overlooked that it was a matter put to them in multiple forms of communication.
One time, we had a serious matter about which we got written legal advice. The EC wrote to all owners. Sent a copy of the legal advice with a covering letter inviting people to 1) ask any of the EC members, and 2) come to an information evening at which the lawyer would explain our problem, his advice and respond to any questions. We also reminded people about the information evening in a newsletter delivered to each unit. The newsletter included a summary of the issue, again with an invitation to ask any EC member and our contact details.
At the meeting one angry owner complained about the lack of consultation about this issue while the lawyer was speaking. For once it was nice to not be the target. The lawyer slapped this down in a way we could not have done. He praised the EC for having sought advice on the important topic, distributing it to all owners and for having provided the evening as a means for consultation. He said he heard the comment 3 times a week and it usually came from people who could not be bothered to simply ask. So nice to hear someone else say what we had to stay too polite to say!
Usually the strata manager would provide a unique number on their invoice for each payment that identifies the unit/lot that it is for. Eg. If you use Bpay the number you enter automatically identifies that it is for your unit. If you make the payment as a manual transfer, there is still a unique reference number that you would be asked to enter. It is conceivable that you might put the wrong reference number in, make the payment and it is now a payment sitting as an orphan in the manager’s trust account because they don’t know where it is supposed to go. Meanwhile, no payment would be recorded against your unit.
As Jimmy said, if you can show a payment was made out of your account to the managing agent, send them the details and they should be able to find where it went and why it didn’t register as a payment against your levy account.
Perhaps there is some previous Tribunal decision that would inform a current one? Eg. They might have decided that a structural matter is, after all, an OC responsibility, even pre-1974. Are decisions of the NCAT searchable?
@Nibbles55 said:
…my response so far has been to say “lintels are separate structural elements that are NOT part of the windows and doors, but are designed to support the overlying brickwork, which is common property.” Does this seem fair and reasonable?…Sounds right to me.
I agree, too. And it helps to be on top of the legislation when something unusual crops up because the manager does not always know. Still, I try to be respectful when saying “What about section XX.X? Doesn’t that mean we have to do it like …?”
In the ACT, owners can over-ride the EC by petitioning for a general meeting. If 25% or more of owners sign a petition calling for a general meeting, then the EC must call one as soon as practicable. The petition must state the matter to be considered by the meeting. My interpretation of the Act in the ACT is that the EC could put unrelated matters on the agenda distributed with the meeting notice if it chooses to do so. However, not everything would be ‘up for grabs’; only the matters that were notified in the meeting notice, which would be only the matter that was the subject of the petition, and perhaps other matters if the EC chose to take the opportunity to deal with some other matters. A motion to elect a new EC would only be on the agenda if that was included in the petition matters.
@JimmyT said:
You’d think so but some strata managers take the view that they are supposed to be instructed by the owners and not the other way round – which is true but often unhelpful.
Ideally, the strata manager would not dictate but would advise the EC clearly and firmly if it thinks the EC is being unwise. Ultimately the buck stops with the EC’s decision.
If it is like in the ACT, the EC can prioritise enforcement of bylaws. In a recent matter I was involved with at the ACT Tribunal, the Tribunal member readily accepted that the EC could prioritise when the respondent argued that she should not have to comply with a rules infringement when other owners had unit alterations that had not been approved. In this instance it helped that nobody had done anything remotely like this alteration.
Decisions of the the EC are subordinate to decisions of the OC at a general meeting. If a general meeting were to resolve that a certain class of bylaw infringements should be enforced, then the EC would no longer have the discretion. I would recommend that the OC be mindful of the amount of work that it can take to deal with even one infringement if the owner wants to dig in heels, before imposing a burden on the EC to deal with every single matter.
I think it is reasonable for a current EC to decide to tackle matters that it deems to be achievable, or most serious, or current rather than historical, or the subject of a reasonable complaint, or uncomplicated by any other similar but long-standing alteration, or any other reasonable criteria by which it might decide what to tackle first.
Obviously the EC should try to be as fair and consistent as possible. A few years ago our EC addressed each of several instances of unapproved fences enclosing areas of common property. One was much worse than the others but we tackled all at once to be fair. To be manageable, other sorts of unapproved alterations were not addressed at that particular time.
I am aware of a published case in the ACT where an EC lost trying to enforce a rule limiting the installation of air conditioners. It had argued that the unit owner could instead insulate better within the unit area rather than install an air conditioner partially on common property to the detriment of the appearance of the common property. Their case was undermined to some extent by other instances of similar installations in the complex.
@Susanp said:
Hi I was told by our strata manager, that if a sinking fund plan is made up by owners/owner (this is in NSW) and they put their name to it (ie sign it), then they can potentially run the risk of being sued if something is incorrect, even if this owner later sells – does this information sound right to all of you – to me it sounds a little far fetched.Sounds odd to me. If the plan was adopted by general meeting resolution and all were given ample time to scrutinise the plan before the OC as a whole agreed to adopt it, then it would seem to be only the entire OC that could be held responsible. And then, who is the OC responsible to except to itself. Perhaps an individual could be liable if it could be shown there was some deliberate deception involved but I can’t see how a simple failure to predict the future perfectly could result in a liability.
It would be wise to include in any plan some sort of contingency component. This would give some latitude to cover the possibility that one or more future cost might turn out to be more than had been reasonably expected or some expense might might be required sooner than had been reasonably expected or that something entirely unexpected shows up.
You own a share in the entire property coupled to a special licence for exclusive use of one of the lots. To secede from the property, the entire strata plan would have to be drawn up again and unit entitlements reassessed and to do that requires a high threshold resolution of a general meeting, with details varying between jurisdictions.
When you buy into a strata-titled property, you become a member of a club, whether you like it or not.