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Did the structure need OC approval?
Did the structure need council approval?
Is there any record of either?
If there is a record, does it show construction details (which may answer some questions about how solid it is)?
Does the Land Titles Office have anything registered for your development (handy to know about other stuff anyway)?
Ditto for the council?
Is it shown on the strata plan as common property or part of a lot? That should be definitive about who owns what.
If there is no record of anything, I suggest that the EC engage a strata specialist lawyer to advise on who is responsible to do what where. I would suggest that you want advice that is practical to let you and your neighbour continue to have the convenient access provided by the structure while protecting the other lawyer/unit owner from possible liability and also the OC from possible liability. That advice might be to pass certain resolutions now to regularise the status quo so it can continue in a correct legal manner.
I would also want to have a structural engineer provide the advice if plans and approval cannot be found. However, it sounds like you need the engineer in any case if the railing are wobbly.
The bottom line is that the OC (IE all of you collectively) does not yet know that it is not responsible for a structure that might be dangerous. Similarly, the unit owner below does not know what he/she might be liable for.
I would be seeking to ensure that everything is correct and transparent, and above all safe, with structural advice and legal advice. I would be trying to impress on the lawyer/unit owner below that it is in his/her interest to have this sorted out from both the perspective of being the lot owner and from being a member of the owners corporation. I would be emphasizing that all benefit from clarity around the situation. No losers, only winners.
Could it be that the EC or OC (in which ever forum said no) is saying that it sees no compelling reason to change from standard functional tilt doors that look pleasingly uniform across all the garages?
I would think that a key to addressing the issue would be to know who said no and why.
If there was something irregular about the way the meeting was called then maybe. For example, insufficient notice given according to the Act or the notice lacked something required by the Act.
However, we had a matter that the EC wished to put to the owners at a general meeting. An owner who took a different view from the EC on the matter applied for orders from the ACAT (ACT equivalent of the NCAT) to stop the meeting going ahead.
The tribunal heard the matter but slapped it down pretty briskly saying that it was not appropriate to preempt the decision of the OC at a general meeting. Indeed we argued, and it seemed to be accepted by the ACAT, that it did not have the power to prevent an OC from meeting.
If the meeting has been called to comply with an order from the NCAT then it seems even less likely that the tribunal would give orders to stop the meeting from proceeding.
Boy, it sounds like you are being way too nice. You have done everything by the book. There are orders for the shed to be removed. It is unequivocally established as necessary to comply with the OC’s safety obligations. Keeping the shed has been put to the OC at a general meeting and the motion was lost.
In your letter, I would have reiterated all that and said that the EC had an absolute obligation to remove the shed without delay and that if he did not do so within the 14 days, the EC would arrange for it to be removed and the unit owner would be charged for the costs involved.
With the benefit of hindsight, it would have been good to have asked for orders that the OC could remove the shed and charge costs to the owner if the owner did not remove the shed within some reasonable period.
I think the main thing now is to have clear protection for the OC if it removes the shed. I would be looking for the order to include that you can do that. However, if you did just remove the shed, I don’t think the lot owner would have much of a case against you given two lots of fire safety and council advice, a tribunal order that it be removed, and the failure of an OC resolution to grant exclusive use to the lot owner.
I feel your pain! I experienced one guy who was ‘like that’. Fortunately, he was not chair, treasurer or secretary, but he was there to save us from ourselves and explain in no uncertain term how and why we were completely incompetent or worse. He had bought a unit not long before joining the EC and as soon as he joined the EC he proceeded to explain how everything he saw about him was done incorrectly. He gave the impression of gravitas and competence but was not above making incorrect assertions of easily disproven ‘fact’. I think he was not accustomed to being disagreed with. He eventually resigned from the EC without explanation. There were multiple possible triggers. While he was there he was a constant source of stress for other EC members.
Do you have a managing agent? It could be good to talk to the agent. He/she might be just as frustrated by the secretary and might be pleased to see a change of personnel. However, the agent just has to work with and take direction from whoever is in place on the EC. The agent might agree to mail a letter to all owners. That would get around any reluctance to hand out the mailing list. What about the chair or treasurer? Do they get on with the secretary? Is it a case of nobody else wanting to do the work so the secretary does everything, however he feels it should be done?
Our AGM financial report shows the total against each budget line item for each fund: administrative fund, sinking fund and a ‘special purpose’ fund. As treasurer, I provide a ‘report’ in which I describe in more user-friendly terms what sorts of things are covered under various line-items in those accounts. I also draw attention to and explain anything that might look odd, such as spending significantly more or less than the previous year on something. Often the explanation is simple: an error the year before corrected this year or bills for 3 quarters landing last year and five quarters landing this year. However, I don’t provide every single transaction ever made. One year when we did that, the AGM bogged down with pedants agonising over minutiae.
Less than 20 units. It should not be hard to talk to a fair proportion of owners to find out it there are others who feel likewise. Perhaps many owners thought it was only them? Encourage some like-minded people to go onto the EC with you. The secretary has only one vote on the EC.
On a matter for us Michael Teys gave us some good advice: He suggested we call a meeting of the owners at which he could explain why it was we needed to pass some resolutions in the manner he recommended. We had organised our parking arrangements since the 1980s in a way that had become untenable, but a few owners were suspicious that the EC was trying to take away some rights that owners believed they had. We weren’t, quite the contrary, we were trying to reinstate what we all thought we had by doing it correctly and legally and ensuring fairness and equity by, at the same time, also allocating parking for those who had missed out under the old regime.
Teys correctly advised that we would face a bunch of people who were angry and defensive and it would not be pleasant or helpful for the EC to wear the full force of that. Instead he suggested that he be invited to explain the situation and deal with the flak. It was very productive. It got a lot of people on side for what we had to do. However, a few remained unreachable. Since the resolution in the ACT required an unopposed resolution, and a few still voted no, we still needed to go to the tribunal with an application to give effect to the failed motion. It helped that nearly everyone had supported it. The objections of the few who did not were found to be ‘unreasonable’.
I also have a little bit of experience with Chris Kerin who provided good clear written advice for us a few years ago when working with Teys. I heard Alison Benson speak once for the OCN (ACT) and she gave a good impression, though perhaps more as one who would prefer to negotiate. Of course, she might do fight just as well if she has to, I don’t know.
I don’t know what the Act says in NSW. I am in ACT where the Act is silent on proxy or absentee voting for EC meetings. However, it seems to me it would be very poor form for the remaining members of the EC to not count your view if the motions are notified and well understood by all. Since you are five, do you expect the matters to be split 3:2? If 4:1 or 5:0 are likely it won’t matter if your vote is not counted.
@nyonyakay said:
Obviously, I am prepared to pay for this. It is for a Section 62 issue that has dragged on since 2009.The ones I have already talked to and ruled out are Grace Lawyers and Makinson d’Apice.
By fierce, I mean someone with a strong litigation background who will fight for me to win.
We were represented by Michael Teys on some matters. He took no nonsense. He has since gone more into strata management I think but might be taking business.
Jimmy’s suggestion is essentially what we must do in the ACT from our Act. Minutes must be sent out within 7 days of the meeting. [If the meeting was conducted with a ‘reduced quorum’ then the minutes must be accompanied by a form that lets owners know that the decisions of the meeting do not take effect for 28 days and can be overturned by a petition of >50% of owners.] Then the minutes must be sent out again with the notice of the next general meeting and that meeting would have a motion to accept the minutes of the previous meeting.
Nobody seems to think there is anything odd about this arrangement.
Most of the time an EC in my experience can reach a consensus on most matters. However, sometimes you just have to out-vote a dissenting view. Sometimes I am outvoted.
If a majority of the EC resolve to accept a particular quote, I would say that should be it. If one or two members of the EC preferred the other quote for some reason, then presumably they had the opportunity to put their case but failed to persuade a majority.
Sometimes you get people with odd views. Requiring unanimity could be a recipe for paralysis.
I would be arranging to shower at work or a friend’s place for a while (unless you are very spartan and don’t mind a cold shower). Then I would turn off the electricity to the hot water – it is your meter, you don’t have to have hot water in your unit if you don’t want to use it. Then see what happens. It should not be many days before the water is coming through cold and the owners of the other two units try to work out what is wrong. Their electrician can identify the problem and document it for you.
@Costa said:
The By-Law doesn’t excuse them from looking after it, it doesn’t say who has to look after it, so the Exclusive Users should.Given what the Act said, your logic seems perfect. The unit owners who got the benefit of exclusive use of an area of common property should be responsible for any costs associated with its maintenance. That is certainly how we did it, explicitly in the resolution, to grant exclusive use of common property parking spaces to those owner who did not have parking within their unit areas. The common property remains common property but the conditions of the grants of exclusive use mean the OC can charge back to the benefitting owners any reasonable costs associated with maintenance (eg. repainting the carports).