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Is it perhaps that the legislation requires an agreement with a particular person? We (in the ACT) got around this sort of problem with legal advice that the OC could resolve to grant exclusive use to ‘the owner of the unit for the time being’ or ‘at any time’. That is to whoever is the unit owner at any particular moment. That way the exclusive use would run with the unit. Of course, that might not have been the issue where you are.
We also have a ‘rule’, that is, a by-law, also checked out with legal advice, that any facility provided for the exclusive use for the owner of one unit is the responsibility of that unit owner to maintain.
Both of these provisions were set up to avoid needing to have individuals sign bits of paper which would have to be remade with new owners each time a unit changes hands.
Sounds like fraud to me.
Talk to your neighbours about your concerns.
Make it so that you are not the only one to be sticking your neck out at the AGM. See if there is willingness among other owners to not elect him to the EC. If you make a point of not voting for him, it would be good if you could explain at the AGM why, with regret, you cannot support him for the EC. If others are forewarned so they understand the point you are making, then they may also vote against.
Another option is to put a motion to the AGM that would direct the incoming EC to address examples of appropriation of common property and unapproved structures. It need not be personal if there are other examples.
In the ACT, the EC can approve a ‘minor use’ of common property if it is ‘unlikely to unreasonably interfere with the use and enjoyment of the common property’ by other residents. I am not aware that other states have an equivalent provision to allow minor matters to be dealt with simply. Instead my impression is that the same process is used for everything from the most trivial to the most substantial private uses of common property. I expect this leads to a lot of pragmatic turning of blind eyes, which can occasionally come unstuck.
Our OC adopted a rule (aka bylaw) which explicitly makes unit (aka lot) owners responsible for their items of property on the common property, whether they have permission to leave them there or not.
@JimmyT said:
…The Owners Corp can’t pass a by-law retrospectively…Perhaps the OC is trying to now do something correctly that was not done correctly 20 years ago? We had a situation that was a bit like that. Areas of common property allocated for the use of the owners of particular units but the process used over past decades was found to have been incorrect. Our lawyer advised that the remedy was to give everyone what they thought they had on essentially the same terms but to do it correctly this time.
Motions normally only get considered by a meeting if the motion is proposed by someone and seconded. Seconding tests that at least one other person wants to see the motion put to a vote. If nobody seconds the motion lapses (due to lack of interest).
Motions put on the agenda by the EC are presumably there with the support of the majority of the EC so they don’t need anybody’s name on them. If someone convinces the EC to adopt some proposition as their own and put it to the meeting, then the originator might not be made known.
If someone wants to put some proposition without EC support, then I think they should put their name to it, and I think the EC should not put the motion on the agenda unless the motion is seconded by someone. On the other hand, if the motion has a proposer and seconder then the chair should accept it and put it on the agenda for the meeting. The only exception would be if the motion is for some proposition that a general meeting cannot properly decide. A proposal for the OC to do something that is outside the powers of an OC should be rejected. Also, a proposal that is so poorly worded that it would not be clear what had been decided should also be rejected.
Bottom line: If you have a controversial proposal, I think you should have the courage of your convictions to put the motion. On the other hand, if you can’t find anyone to second the proposal, you should accept that there is little or no support for the proposal and not waste people’s time.
I think there has to be a time and place, at least in ACT legislation and probably elsewhere. It might be in middle of a weekday at the managing agent’s office and only have room for a few people but at least the chair and a couple of EC members should attend, in my view. I would only consider a paper meeting to formally tick off some matter about which there was no expectation of any dissent.
Hi Cathy,
Thank you for the ‘shout out’ to s.32 of the UTMA! Do you like s. 23? That is a neat paraphrase of the submission I made to the review of the Unit Titles Act in 2010 after we had everything now required by that section to install a PV system to wipe out our OC electricity bill including majority support twice at general meetings in 2009. However, the Act was previously ambiguous about whether a special resolution was required and we did not quite get the numbers for that because a few owners ran a strenuous campaign of misinformation against the proposal.
Anyway, back to animals. Our EC is in the process of drafting a rule (bylaw) on animal keeping to be put to our AGM this year in the ACT. In the current draft, possibly not quite final, it says (formatting not perfectly fixed up) the following. The gist is that you can have just about whatever you like within a unit area (all townhouses) and how you control it is up to you so long as it is not roaming the common property and entering other units. We comply with the Act, which requires permission for even a goldfish by giving the permission via the rule to cover nearly all common situations. However, we don’t preclude the possibility that someone might come up with some unusual and unexpected animal-keeping proposal which might turn out to be quite reasonable after it has been given proper scrutiny.
Draft Rule Keeping of Animals
1) A unit owner, occupier or user of a unit may keep an animal subject to the conditions set out in these Rules.
Note: 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”.
2) Any animal that is deemed by the Executive Committee (EC) to be potentially harmful to the health or safety of others will not be allowed, including any type of dog or other species that is deemed dangerous under any relevant legislation in force in the ACT.
3) A unit owner, occupier or user of a unit who keeps an animal, or allows an animal to be kept, is deemed to have consented to the conditions imposed under these Rules.
Conditions
Approval Process
4) The consent of the Owners Corporation (OC) is granted automatically by this rule for any unit owner, occupier or user of a unit to keep:
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- up to two common household pets (dogs and cats) in the unit as a companion animal(s).
- a sufficiently small number of small animals (such as mice, cage birds, guinea pigs, fish, amphibians or reptiles) in the unit that can reasonably be expected to not cause a nuisance to other residents.
- an assistance animal, such as a guide or hearing dog, used by a unit owner or occupier of a unit or visitor.
5) For any animal not covered by sub-rule 4, including poultry, a unit owner, occupier or user of a unit is required to submit a written request for approval through the managing agent before bringing an animal into the Units Plan.
6) The EC may grant approval, with or without conditions, for an animal not covered by sub-rule 4 to be kept in the Units Plan after consideration of the merits of the proposal but may refuse to grant approval if the applicant fails to provide on request any information that the EC considers relevant, which may include:
- Information about the animal including the breed, weight and standing height, and common characteristics of the species.
- A photograph of the animal.
- Documentation from a veterinarian attesting to whether the animal has been:
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- Desexed
- Micro chipped
- Vaccinated and inoculated for worms and any other parasites as recommended by the RSPCA.
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- Details of how the animal is proposed to be housed or controlled.
Dealing with animal
7) The keeping of animals at XXXXX must comply with the requirements of ACT Government legislation.
Note: At the time this rule was adopted, ACT Government requirements were set out at http://www.tams.act.gov.au/city-services/pets. These requirements include that all dogs and cats must be desexed and micro chipped and that all dogs also must be registered.
The OC also encourages owners, occupiers and users to have animals vaccinated and inoculated for worms and other parasites as recommended by the RSPCA.
8) The animal must stay within the confines of the unit area except when under the control and supervision of a responsible person.
9) The unit owner, occupier or user of a unit must ensure that the animal is appropriately and effectively restrained and under the control of a responsible individual while on common property. This clause is sufficiently flexible to permit off-lead walking and play with appropriately trained dogs or other animals.
Note: The common property does not include the main XXXX public road or its verges… These are a ‘public place’, to which the Domestic Animals Act 2000 applies. S.44 of the Act requires that dogs in public places be restrained by a leash.
10) The unit owner, occupier or user of a unit must ensure that the animal does not soil any part of the common property and is to immediately remove any soiling which may occur on the common property.
11) The unit owner, occupier or user of a unit will be responsible for repairing or making good any harm or damage caused by the animal to any unit or the common property.
12) Sub-rules 8 and 9 do not apply to animals that were accustomed to roaming unaccompanied beyond the unit boundaries before this Rule was adopted and have been included on a ‘grandfathering’ list compiled by the EC.
Dealing with bad behaviour
13) The EC may require the removal of any animal if it determines that the animal’s behaviour or condition causes a nuisance or a threat to the health or safety of other occupants or animals in the Units Plan or unreasonably interferes with the use and enjoyment of another unit or of the common property.
Note: If a unit owner, occupier or user of a unit believes that an animal at another unit is causing nuisance through noise or other means, they should, if possible, try to resolve their concerns directly with the owner of the animal. If this is unsuccessful then they can pursue the matter through provisions of ACT legislation on animal welfare, animal keeping, neighbour disputes, noise and nuisance. If the EC believes it is appropriate to pursue the matter through enforcing the OC Rules, then Rules 6, 7 and 8 may also be relevant.
14) Before removal of any animal, there must be repeated substantiated complaints by neighbours or other unit owners, occupiers or users of units regarding the animal causing a nuisance or threat to other occupants or animals or unreasonably interfering with the use and enjoyment of another unit or of the common property.
15) Any decision made by the EC that an animal must be removed from the Units Plan must be presented in writing to the unit owner, occupier or user of the unit.
16) If the unit owner, occupier or user of the unit fails to comply with any of the conditions in these Rules, the OC may revoke approval and require removal of the animal.
In the ACT it would generally be like that too.
However, in our particular OC, the norm is to not have a fence. Our landscape design envisaged unit area gardens being blurred or blended into the common property. Fences are permitted but discouraged in written policy adopted by general meeting resolution. It is therefore only when a unit owner wants to have a fence on their boundary with the common property that they are given permission to do at their own expense and subject to conditions about the style. Our OC does not pay for any fence maintenance costs.
I suggest you ask your executive committee. They should be able to access. If they can’t they should be able to direct the managing agent to give them a key. The EC has ultimate responsibility to manage the property even if they delegate some functions to a manager.
If there is really still a concern about your access, then an EC member could come with you to (metaphorically) hold your hand.
@AYK said:
By the way, where did you get the legal advice? They might have offices in Sydney. It might be useful to get some legal advice before commencement.We used Teys Lawyers who don’t exist quite as they did. Michael Teys, who provided the advice is now at: https://blockstrata.com.au/strata-law/
My reaction is still to not be keen on the auction aspect of your proposal. Perhaps better to collectively agree what would be reasonable compensation for getting one of the poorer spaces before then drawing numbers out of a hat for who gets which.
Let’s say one space is least desirable, two are middling and one is more desirable. Perhaps the deal could be that the middle two can be allocated without adjustment, the poorer one is allocated with a plus $X adjustment and the better one is allocated with a minus $X adjustment.
A resolution to allocate the spaces could also specify the witnessed process of drawing lots.
Just my suggestion and speaking to a lawyer could be a good idea!
I am assuming the parking spaces are common property. If so, granting exclusive use of the spaces to particular lot owners would, in ACT-speak, be granting a ‘special privilege’. In the ACT that requires an unopposed resolution of a general meeting. In NSW, I think it might be a special resolution but I am not certain.
In order to pass a special resolution, with fewer than 25% opposed, from a set of four, you need the resolution to be unopposed in any case.
As a matter of principle, a lot owner’s access to use and enjoyment of the common property should depend only on being a lot owner, not on capacity to pay in an auction. If I were there I would oppose allocating them by auction. Instead, I think you need to have either a negotiated agreement or agreement to draw straws. Perhaps one lot owner would be prepared to take the space that is smaller but closer while another get the one that is bigger but further away. Is there scope to make them more equal at OC expense as part of the solution. Eg. Can the smaller space be widened before being allocated?
it is worth making sure you get it right. Our OC allocated parking spaces on common property with the EC purporting the grant special privileges without the authority of the requisite general meeting resolution. That happened in the 1980s and it came back to bite us a few years ago. We had to completely redo all our parking allocations after complex negotiation. A handful of owners refused to accept the legal advice we had and so the resolution to correctly and equitably allocate failed. We then had to go to the Tribunal for orders to give effect to the failed motion. Those few owners continued to fight which drove up the legal costs as we needed to be represented to maximise the chance of getting the right outcome. In the end we did get the right orders and things are sorted, but it cost some serious money, all because of a few who would not listen to reason or good legal advice.
And there (in my bold) is the difference.
I am happy to agree with Jimmy’s interpretation of the subtly different wording of NSW and ACT acts. I think you NSWelsh must have a very hard time getting even the most reasonable of special resolutions passed if there is opposition from anyone prepared to run a leaflet campaign of disinformation and/or round up a handful of proxies from disengaged mates. [Not that I am scarred or bitter about anything!]
I can’t find any rules on whether or not you count spoiled vote (like the ones where someone has scribbled “the chairman is an idiot”).
We counted the vote on which one owner added that he wanted to vote against the chair and me (treasurer) if we stood for election. Voting intention on rest of the form could be easily understood so this was interpreted as an direction to his proxy. The consequence was that we voted on each person nominated to the EC one by one, rather than just as a block by show of hands. The consequence was that there were a few votes against me and the chair but large majority support. However, for someone else we had to recount three times because it was so close and for the only time I am aware of, a person who wanted to join our EC did not get on.
With only 10 owners it would be easy for everyone to quickly get a feel for the numbers. If the numbers look like being 7 in favour and 3 against, I would subtly ask the 3 against if they really want to be known as having been in the minority that thwarted the will of a very substantial majority. Does everyone take part in the AGM? If not everyone shows up only 2 against could be the 25% opposed that would sink the motion.
This gets into a discussion about whether people taking part in the meeting but abstaining on this motion count towards the total when considering whether there is 25% opposed (one third opposed to sink a special resolution in the ACT). In the ACT I would say a person taking part in the meeting but abstaining on this motion is counted to the total. [The question of abstentions is further discussed here]
As it happens, our OC has had a process running for several years to review our ‘rules’ (ACT-speak for ‘by-laws’). We are updating our ancient rules that had not changed since 1976. The first round just rescinded the rules that were no longer relevant or had become redundant since various matters were now covered in the Act. We also adopted various rules from the current default rules mainly to replace the dated wording of similar rules we had previously. The second dealt with more substantial matters but mostly uncontroversial. Nonetheless the EC circulated drafts and asked for comment and got some useful feedback. It also gave an opportunity to explain several times. Often things don’t sink in till it has been presented several times and often people just don’t pay attention. The third round is the animals rule. Again several rounds of consultation. This time there is no way to satisfy all since we have positions ranging from utterly laissez-faire with cats but strict on dogs to the reverse. We think we have a very reasonable middle course, but we will see ‘at the only poll that counts’ in July!
I don’t know the magnitude of a penalty unit in NSW. In general, in legislation, the penalty (IE fine) for doing something is expressed in penalty units. Government regulation periodically increases the value so that fines for various things keep pace with inflation. Otherwise, legislation that has not been updated in a while could have fines of three farthings for quite serious matters.
I expect one can find somewhere on a local government web site what the current value of a penalty unit is.
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