[Sir Humphrey]

Hmm. We have that situation the other way around. An owner erected a structure on the unit area without approval. The EC issued a rules infringement notice (ACT-speak for breach notice) with a generous deadline and that was ignored, so we went to the tribunal. The Tribunal decided that our rule on alterations was valid and that the infringement notice was valid and the unit owner was ordered to comply with the notice (requiring the structure to be removed) with an extended deadline. She has now just failed to remove the structure by the new deadline. 

So, here at least, we have learned that the next step is to go to the Magistrates Court seeking an ‘enforcement order’ to give effect to the Tribunal’s order. In this case where a person was required to do an act (IE remove the structure) the Court can appoint another person to do that act and order the person who should have done it to pay costs. 

In the case of a by-law not being made by the OC after it was ordered to do so, the relevant NSW Court might be able to simply deem it to have been made. 

I was worried in our case that the unit owner might have a mechanism to reopen the matter and start the argument from scratch again. I was told that would not happen. The Magistrates Court would only be interested in making the Tribunal orders happen. I would expect NSW to have a parallel approach. 

[Sir Humphrey]

To me it sounds like the original appointment might not have been entirely kosher. However, if the OC at a general meeting resolves to extend the contract, then that, in itself, would seem to retrospectively make proper the earlier improper appointment. 

More generally, something, whatever it might be, might have been the right thing to do but was not done properly at some time. A later meeting could fix the problem by making the same decision by the proper process. Our OC had an example of the EC making a decision many years earlier that was not within its power to make. Once we had legal advice that made us aware of this problem, the legal advice on a remedy was to have a general meeting of the OC remake the decision on the same terms by the correct process. 

I would not worry about the past. If the GM resolves to extend the contract, then I would regard that as a suitable remedy for past error. 

[Sir Humphrey]

Perhaps the owners could find a place to safely set aside for bike storage? No longer cluttering the stairwell but providing a useful service for residents?

[Sir Humphrey]

Just an aside comment here from the ACT:

In the ACT the EC can approve ‘minor uses’ of the common property if satisfied that the use would not ‘unreasonably interfere with the reasonable use and enjoyment of the common property by other members of the corporation’. On the other hand, non-minor exclusive uses of common property require a ‘special privilege’ which has the very high threshold of requiring an ‘unopposed resolution’. IE if someone wants to use the common property in the ACT, there is an easier way than in NSW for minor stuff and a harder way than in NSW for the major stuff. 

Here, the EC can approve the minor stuff without the need of bylaws for trivial things that wouldn’t bother anyone. Since ‘minor uses’ can be dealt with formally and properly by the EC, this avoids encouraging the pragmatic ‘turning of a blind eye’ that might lead to a more general and unfortunate disregard for proper process. 

What is ‘minor’ is whatever the EC feels it can comfortably defend in the circumstances. Exclusive use of a few square meters of common property could be minor in one location but not defensible as minor in an other situation. The Act gives examples such as an awning or an air conditioner. An awning that obstructs a path would not be minor in spite of the example in the Act but, in the context of a large site, a veggie garden plot that is subject to rules of a community garden could be a minor use. 

For anyone considering reform of strata legislation, I recommend the ACT’s approach to this topic. 

[Sir Humphrey]

Good idea, Jimmy. The only possible negative I can suggest is that when the unit is sold to someone else, that later owner would not be bound by the developer/prior unit owner’s agreement. That later owner could legitimately want the OC to fix defects which by then would be the OC’s problem. 

In the ACT there is a provision that the OC can enter a unit if it is necessary to inspect or maintain the common property after giving reasonable notice etc. Does NSW have something like that?

[Sir Humphrey]

In the past year, we did have a complaint about an unapproved structure erected on one unit. It had a direct impact on the immediate neighbour, and even if she had not complained, the EC would have issued a Rules Infringement Notice in any case. Dealing with this has dragged out over a year and at first involved trying a softly, softly approach of speaking to the unit owner, then a nice letter explaining why the structure was unacceptable (and did not serve the function it was purported to serve), then the Rules Infringement Notice. In all that our EC minutes accurately record who was to do what and why and when. We wanted an accurate paper trail that would be useful if came to it that we were accused of having done anything other than utterly by the book. 

In that we referred to ‘the owner of unit XX’ but that would have afforded no anonymity if minutes had been broadcast. When we reached the point that the Tribunal had given orders that the owner must comply with the infringement notice, this was fully disclosed to owners generally except for naming the names or unit number. Firstly as an item in the newsletter, then as one item in a written report from the EC chair to our AGM. In both places, the unit owner’s anonymity was preserved. We did emphasise that the ACAT’s Decisions and Reasons had upheld our unit alterations processes and we reminded unit owners of the need to follow those processes (quite liberal by most standards, but important nonetheless).

Then, soon after, out of the blue, at our recent AGM, a unit owner wanted to put a last minute motion that EC minutes be published and distributed to all owners within two weeks of the EC meeting. The chair refused to put the motion for many reasons that I consider valid, mainly to do with inadequate notice. Many unit owners had already submitted absentee votes or made proxy appointments without this matter being on the agenda, there was not enough time to issue a new proxy/absentee voting form, and putting the motion would be inconsistent with certain principles of meeting procedure given in a text that our first AGM adopted as the rules for meetings of the corporation.

The AGM degenerated in fairly ugly debating the validity of the chair’s ruling. The chair had accepted the motion (and two others) as matters for discussion but not voting under ‘Other Business’ which was specifically listed on the meeting notice/agenda as “Discussion of other matters…”. However, we didn’t get to any real discussion of the merits or otherwise of publishing minutes. 

[Sir Humphrey]

I am not sure generally, but where I live the number on the door of the unit is the same as the unit number (‘lot’ in NSW-speak).  If minutes announced that the owner of unit 26 had made a complaint about some alleged transgression by the owner of unit 25, it would be obvious who those people were.

Publication of minutes before the EC had got to the bottom of whatever the problem was would seem unfair to both parties and might diminish the chances of an amicable resolution of what might turn out to be a minor matter or a misunderstanding. I fear it could also deter residents from telling the EC about matters of more serious concern that we would want to hear about. 

[Sir Humphrey]

I would have thought that 5 out of 7 is enough to strenuously pursue all options to ensure defects are fixed. It should not matter that 2 of 7 happen to be owned by the developer. The 5 of 7 would be acting in the best interests of the whole Owners Corporation, regardless of who happen to be owners at this particular moment. 

I would be making sure the 5 of 7 all fully understand the importance of getting defects rectified now. Acting dispassionately in the interest of the OC is your duty, even if at a personal level you might get on just fine with your neighbour who happens to have been the developer. 

[Sir Humphrey]

Here we do try to stick with the less personal ‘owner of unit XX’ formula rather than names, but many would know immediately who lives at unit XX. 

It does sound like your minutes end up less detailed. 

[Sir Humphrey]

And then there are the opportunities to do things communally that you might not have the room or funds to do alone: 

Our set of town houses has a tennis court, two children’s playgrounds recently refurbished with great equipment and shaded seating near by for supervising adults. A pizza oven and BBQ with picnic tables are enough for a party of several neighbouring households to get together. We have a little couple of patches of remnant bush so you can go for a brief bush walk and feel right away from things, even close to the city centre. We have a couple of open grassed areas that are big enough to throw a ball for a dog, play cricket, frisbee etc without worry that the ball will go over the fence into someone else’s yard. 

I know about a hundred neighbours by name. 

Try fitting all that onto a suburban block. 

[Sir Humphrey]

Thanks JT. I think everywhere has very similar wording, which was my point. Nice to see that in NSW it is a provision within the Act, not just left to a rule/bylaw.

[Sir Humphrey]

The managing agent’s advice seems reasonable to me. If this is simply maintenance and not substantially different from what was there before and within the budget for maintenance, then just get on with it. 

If the EC has some doubt about whether most owners would regard its proposed paint and carpet as sufficiently similar, then perhaps it could do an informal straw poll or just knock on some doors with the carpet swatch and ask enough people if they would be happy with the EC’s choice, or pick your top three and ask people to express their preference among those. 

Don’t be intimidated by just one or two who are noisy about not liking a choice. They probably won’t like anything you choose. Just reassure yourself that a silent majority will be happy that the carpets are getting fixed.

If anyone complains tell them that all the owners could be sued collectively for failing to fix the worn carpet if someone trips and falls down the stairs because you didn’t replace it soon enough. 

[Sir Humphrey]

In every state, as far as I know, the EC is elected each year at the AGM. Generally the owners at the AGM can also resolve to make the EC larger or smaller. In the ACT, with which i am most familiar, the EC must have at least 3 members. The OC can decide to make the EC more than 7 members but to do so a special resolution is required. 

Two seems very small for an EC. I suggest you put a motion on the agenda for the next AGM that the size of the EC be changed to some larger number. I think 5 is a good number. Enough for some diversity of opinion, outlook, skills and experience but small enough to be manageable – able reach a consensus, find a time to meet that suits everyone and so on. 

[Sir Humphrey]

Most OCs have a generic bylaw/rule/article that covers ‘nuisance’. Anything that is not covered by a specific rule but causes substantial annoyance can be covered, at least in principle, by the general rule. 

[Sir Humphrey]

Ah. The ACT doesn’t have anything like that bit of the NSW act. 

[Author]

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