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I can’t say for sure but I expect the answer is yes. In the ACT and, I expect, elsewhere, there is a high bar to be reached for the OC to resolve to charge levies other than strictly in proportion to unit entitlements. In the ACT it takes an unopposed resolution.
Since you are a member of the OC and the OC presumably believes it is acting in the interests of the OC as a whole in taking this action, then you have to pay like everyone else that is part of the OC, even though, wearing a different hat, you are also the other party.
Depending on the magnitude of the expected legal costs, taking legal action might be a decision the EC can take or it might be a decision that has to be taken at a general meeting. I could point to the section of the Act in the ACT which sets out the threshold at which a legal cost must be approved by the OC at a general meeting rather than by the EC. I expect that whichever state you are in has a similar provision. You might be able to challenge the cost if the cost is higher than the threshold and the decision to take legal action was taken improperly by the EC rather than properly by the OC.
An analogous problem in the ACT was considered recently at the ACT Tribunal:
https://www.acat.act.gov.au/judgment/view/9469/title/the-owners-units-plan-2737
The decision and reasons set out could be helpful. However, take care if the provisions of the acts in different jurisdictions differ in relevant ways.
I wonder if NCAT decisions could be linked to illustrate responses on this and other matters?
Agree on junk mail dumpers.
Disagree on objection to clothes drying on balconies. I know this is a hot button issue for some but i would say one of my gripes is people who say ‘Use a clothes drier so I don’t have to see washing’. I would much rather see clothes dried with the sun and wind than using electricity. A simple clothes line, avoiding energy intensive electric driers, is the most accessible, cost-effective item of renewable energy technology there is (except perhaps a bicycle).
People who complain, with no sense of irony or shame, about the “lack of consultation” while attending a meeting that was called so that all owners could directly challenge and ask questions of the expert whose written advice had been sent to all owners with the letter inviting them to the meeting to further enable consultation.
People who sarcastically ask this EC member who approved certain features of a refurbished common property facility, implying unilateral decision making, when those features were clearly shown on a diagram circulated to all owners, a plan in which other aspects were revised in light of feedback from owners (who were engaged and paying attention) before the final version was taken to a general meeting at which the plan got overwhelming approval.
People who just don’t get the concept of strata title. Who treat volunteer EC members as if they were well-salaried politicians of whichever political stripe they least like.
I don’t have any experience of NCAT and perhaps it is a lottery but I have been impressed by the ACAT. I have been there 7 times now about various OC matters. Each time we have had a very reasonable result but it did take work to present a good case. The Tribunal members can only work with what you give them.
I am not advocating a blatant disregard for the OC rules but I do suggest working out where you are at with the developer vs. the nascent OC, whose rule it is, whether it is registered and enforceable.
While Whale suggests the NCAT would be likely to find a blanket size-limit to be reasonable and therefore consistent with the Act, the case I cited had an Irish Wolfhound approved for apartment residence after refusal was found to be unreasonable. The OC’s case seemed ill-prepared whereas the dog owner had reputable sources, the dog’s vet and trainer all providing expert evidence that this dog would be fine. Expert testimony carried the day.
This ACAT decision might have some helpful tidbits and shed light on the workings of legal minds:
https://www.acat.act.gov.au/judgment/view/8287/title/nevile-v-owners-units-plan
Does NSW have a provision in the Act like the ACT one: that permission shall not be unreasonably refused?
If so, and if you have expert evidence of your dogs benign behaviour, as was used in the case reference above, you might have a case to make that the rule is silly = unreasonable.
More specifically, are labradors on the RSPCA list that is referenced?
First up. This is a silly by-law/rule. Some small dogs are not well suited to apartments (need constant stimulation, run around, bark etc) and some large dogs are well suited (happy to laze about all day even if they missed a walk).
If you were not buying off the plan I might suggest investigating what culture has evolved. Perhaps larger dogs are tolerated routinely and the rule has languished for years without ever being applied. If that were the case you might take a chance that you could move in with the dog and seek to update the rule to something more sensible through the proper democratic process at a general meeting.
However, off the plan, who knows what the new owners will do. Strictly and pedantically apply the rule? How long might the developer still have control? Will the developer enforce the rule?
You could investigate if this is a properly registered by-law. I assume that the bylaw/rule only takes effect when registered. Otherwise the default from the Act applies. Depending on what state you are in, there might be a default rule in the Act or the matter might be covered within the Act.
Others here will have to advise if you are somewhere other than the ACT. In the ACT, s.32 of the Unit Titles (Management) Act 2011 states that “a unit owner may keep an animal, or allow an animal to be kept … only with the consent of the owners corporation” which may be given “with or without conditions” but “must not be unreasonably withheld”. The default rules do not cover animals. Any custom rule on animals must be consistent with s.32 but could have a custom rule. If the rule you described were in the ACT, you would have to apply to have your dog in the unit. To do otherwise would be a breach of the Act. If your application were rejected, you could argue that the rule is of no effect because it is inconsistent with the Act because it is unreasonable to reject a placid dog such as yours. However, you could find yourself having to make that argument in the tribunal.
There are Tribunal precedent cases you could draw on to support this position, perhaps in other states too. In the ACT, our Tribunal is inclined to draw on decisions in other states if there is no local case history to draw on.
If the developer still has complete control of the owners corporation, any decision it makes is a unanimous decision. You could say that you will buy the unit, but only with permission granted for your dog.
When our OC had purported to allocate parking spaces as exclusive use ‘special privileges’ to particular unit owners over a period of several decades but not according to the required process (unopposed resolution in the ACT), our lawyer advised that the OC could be liable to compensate a subset of owners for the loss of value to their unit. In our case we had a policy in place to allocate only one space to smaller units and no more than two to larger units, and that was consistent with the original DA. Consequently, the solution was to now allocate according to the correct procedure and to ensure that the motion would pass by also including allocation of one or two spaces to all other units that had not yet had a space allocated, in accordance with the same policy.
Some unit owners opposed the motion, so it failed, but we then sought and received orders from the Tribunal to give effect to the motion on the grounds that objection to the motion was unreasonable.
You might have to work out what the most reasonable workable solution would be and put that up as a motion after as much consultation as you can bear. If whatever solution is the best achievable in the circumstances, you might get it up, especially in NSW where I think you need a special resolution, not unopposed. If you have the best negotiated solution and it is in accordance with legal advice and a majority support it yet the motion fails, then you might have the motion ‘given effect’ by the tribunal, like we did.
If it is effectively the fence on the boundary, then I would say it is a shared responsibility. It sounds like it is retaining your property as much as it is protecting their property.
It is quite normal when a unit alteration is approved to include a condition that any damage to common property must be repaired.
You could lean on them to abstain on a matter in which they have a conflict of interest. In my experience EC members have been willing and often volunteer to absent themselves from that part of a meeting at which a matter is discussed for which they are an interested party. Eg. if an EC member is seeking approval for a unit alteration.
I am assuming you are in NSW and I’ll let someone more familiar with things there give a more confident answer. My guess is that the lot/unit owner is responsible for anything on a branch of the pipe that only services your unit. I expect the OC is responsible for the part of the pipe that provides a service to multiple units.
I would suggest, regardless of the answer, that you propose that the OC resolve to put in an isolation valve for each unit at the point where responsibility passes to the unit owner, or the nearest practical point to that. The cost would come out of levies but would be less than if you all did it separately. If not everyone wants to do that, you could work out who does want it and arrange to share the cost of having one plumber’s visit to do as many as want to take part.
I was impressed to find that my computer is familiar with the phrase ‘talk of the steamie’, though I wasn’t.
Here’s an idea: Could the rest of the EC agree that they would all resign forcing a new election at a special general meeting if the one EC member did not resign? They could explain that they would explain their action at the general meeting and that they would consider standing again. Alternatively, if the one member resigned they might not say much about it and the rest of the EC would carry on as if nothing much had happened. He could resign with some face saved.
Before that, however, it would be ideal if the rest of the EC could have a straight talk to the one member to explain that his behaviour is unacceptable. Being seen to be serious might be enough?
@JimmyT said:
…but it depends very much on the type of person we are talking about.I have seen strata committees brought to a standstill because one person is so certain that they are right that they will not allow any other views to be discussed, let alone agreed on.
This can range from refusal to move on to the next item, even after a vote has been taken, to physically and emotionally threatening rage…
Yep. I’ve seen that too. It took a huge effort to not be at standstill or completely off-track. The EC member was not physically threatening, and mostly genial in person, but by email a different person regularly asserting very strongly and, to some, at least at first, persuasively, that the actions of other EC members, me in particular, were at best improper and at worst illegal. It was very wearing!
We got bogged down on one matter for over a year because this EC member had an odd interpretation of a provision of the Act and refused to accept diverse sources of consistent advice.A code of conduct or standing orders adopted by by-law at your AGM would go some way to keeping recalcitrants under control – but I don’t know of a single strata scheme that has such a thing
Every scheme in the ACT has an EC code of conduct, whether we like it or not, because it is a feature of the ACT’s Unit Titles (Management) Act, but I don’t think it would have helped in this instance.
The trouble was that this EC member’s behaviour was, as another owner put it to me, “the worst kind of bullying; insidious and hard-to-pin-down as obviously aggressive.”
Every complaint about my negligence, and worse, looked superficially reasonable but was subtly misleading if you knew the details.
Sometimes it wasn’t subtle. On a few occasions he made confident categorical assertions about facts that could be checked. He was unequivocally wrong and had clearly not checked. There was no apology.
After a very stressful couple of years he resigned when a project he had opposed within the EC was overwhelmingly endorsed at a general meeting. It was a great relief to suddenly be able to have relaxed open honest collegiate EC discussion and debate again without having to worry about how this member would react and who might take him seriously.