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As an EC member I can log onto a web-based system and see the current state of our accounts, including which units are in arrears and by how much. Your EC should direct* the manager to provide a weekly emailed update until the manager sorts out access.
*Of course ask nicely at first but if you get nowhere, make it clear who is boss.
andyj said
… however there was always the unspoken “understanding” that owners had all the rights and power in the complex and tenants were merely renters with few rights…If you were in the ACT the wording of the default rules (aka by-laws, articles) is, for example, “A unit owner must not use the unit, or permit it to be used, in a way that causes a nuisance or substantial annoyance to an owner, occupier or user of another unit.” Similar wording is used for other rules about use of the common property, hazardous use etc.
Under definitions, the default rules have “In these rules: … owner, occupier or user, of a unit, includes an invitee or licensee of an owner, occupier or user of a unit.”
I take this to mean that pretty much everything applies equally to owners and tenants. The only exception I can think of potentially gives tenants additional freedoms not available to owners in as much as a rule has no effect if it is inconsistent with any legislation, including legislation that give protections to tenants.
Perhaps the wording is similar in other states or territories. If not, by-laws/rules can be changed at a general meeting to explicitly apply fairly and equally to owners and tenants (and guests and any other user of a unit) and it would probably be in the interests of owners to make it so. I expect it would be easy to add one rule to say “All rights and obligations imposed in these rules apply equally to owners, tenants and any other occupier or user of a unit, including their invitees and licencees.” That would be useful both to make explicit that tenants have the same rights as everyone else to enjoy their unit and the common property safely and peacefully etc but also that they have the same constraints on poor behaviour as anyone else, no more, no less.
I guess the bottom line is that the level of activity (deliveries and such) either is or is not sufficient to be an unreasonable interference with reasonable use and enjoyment of the common property by others. If it is, then most places would have words to that effect that could be drawn upon from their rules/bylaws/articles.
In the ACT at least, the address for correspondence of an owners corporation is a matter of public record at the Land Titles Office. I suspect the manager is being lazy.
I would either 1) jump up and down and insist the manager acts on the direction of the EC to discover the correct address (There might be a small charge for a title search) and write the letter, or 2) do it myself because it is less effort than (1), or (3) going next door and asking to chat to someone on their EC may well be the easiest.
I can’t suggest a single ‘right’ way to handle this. It depends a lot on your personality and what you feel comfortable to do or not do. If, aside from being annoying and offensive, she is not causing any serious harm, continuing to just ignore her would seem a good approach.
If she bullies others as well then perhaps talking to those other neighbours will help build a sense of mutual support for you all.
Does she have any specific grievance that could be addressed somehow?
Some people like to deal with such people by disarmingly going out of their way to be exceptionally nice to them.
As for doing anything legal. I don’t know but suspect it would have to be pretty severe abuse before a legal recourse would be worth the bother.
@ros11e2029 said:
Thanks everyone for your replies.I want to reiterate that I’m not concerned about the legalities of the business. As far as the person who is running the business is concerned, she is supplying her friends at no charge and it is not a money making venture.
So, back to the issue – there are delivery trucks bringing in supplies on a regular basis. Is there some way of dealing with the extra wear and tear on the driveway and the blocking of garages by these trucks, without getting this particular owner off-side.
Thanks again for your advice
You could ask your EC to have a word with her about the damage/risk of damage to the common property and the nuisance caused by blocking access. If they wanted to get serious they could use the by-laws but talking first is best.
Still, how much of a problem is it if a delivery happens only once per week? For how long does the truck block access?
@ros11e2029 said:
…The main issue is the delivery trucks that deliver to her garage. There are weekly deliveries to her garage which is underground, and the trucks often block access to the other garages. We’re also concerned about the extra wear and tear on the driveway…These days lots of people have a home office and could run a business with just a computer and little else. Such a business could be entirely invisible to the neighbours and cause no problems whatsoever. It seems unreasonable to me to prohibit that.
On the other hand, perhaps you can address trucks and blocking of access purely from the point of view of the usual general purpose rule/by-law/article that most have that prohibits unreasonable interference with reasonable use and enjoyment of the common property by other residents.
If nothing else, you can point out at the meeting that it is normal to have the agency agreement included in the meeting notice so that people have a reasonable change to know what they are agreeing to. We include the agreement even when renewing every few years with a manager we are generally happy with. A few years ago an owner noticed a slightly odd clause and with the manager present at the meeting the general meeting was able to resolve to accept the agreement subject to an amendment to that clause. It was not a big deal but only possible because we distributed the agreement with plenty of time for people to read it.
It is usually easier to scare people with the unknown than to convince them of a known change so you don’t have to prove anything bad about the new manager or suggest that the old manager did not deserve to go. You only need to argue that the meeting does not have all the information it needs and a reasonable time to consider the information in order to make an informed decision.
@Stevecro said:
In NSW the SSMA 1996 says:- (2) When a vacancy occurs in the office of a member of an executive committee (otherwise than by reason of subclause (1) (d)), the owners corporation must appoint a person eligible for election as a member to fill the vacancy. Any person so appointed holds office, subject to this clause, for the balance of his or her predecessor’s term of office.
I guess you could call an Extraordinary General Meeting (EGM) and replace the vacancy there. How soon should that be done? The act does not say how soon, however like everything else it should be done as soon as practicable.
I am not sure that the quoted text would necessarily require a general meeting, though it might. In the ACT the Act says the EC can exercise any function of the OC unless directed otherwise by a general meeting resolution or the Act specifies a particular resolution of a general meeting to make that sort of decision. If that is similar elsewhere and if the Act specifies the process of election of an EC member at the AGM, appointment to fill a casual vacancy at some other time might not be the same thing and might be a function the EC can exercise.
Just because the EC can exercise a function does not always mean it should rather than refer to a general meeting. That is a matter for judgement.
@Queenslandissue said:
thank you everyone, the AGM is tomorrow (22nd Jan), let’s hope common sense prevails. Will be back to say what happened.So. What happened?!
In the ACT, in this situation, the remaining EC can appoint another member of the OC to fill a casual vacancy. Perhaps it is the same wherever you are? If so, you might be able to put up your hand and/or suggest the other willing person and the remaining EC could appoint one of you.
I am guessing you are in NSW. I am in the ACT where the legislation is a little different. Nonetheless, the Act would specify the form of notice required to call a general meeting. I expect that just a note on a notice board is not sufficient to call a general meeting. A valid notice of a meeting would, I expect, require a certain amount of notice to be given, for certain details about time and place to be on the notice, perhaps a particular form to be used, and all notices to be mailed to all owners at the address for correspondence that has been registered on a list of lots held by the OC.
There is nothing wrong with the EC proposing motions and advocating a yes vote for its proposals. Preparing proposals for the management of the OC is part of their job. Still supplying a proxy form with the boxes already ticked is a bit over the the top! I think in NSW the Act specifies how a proxy form appears in more detail than in the ACT. If the pre-filled form is the only one provided then I would expect you have a good case for saying it is not a valid proxy form.
I suggest you talk to your neighbours to gauge their reaction. Perhaps there is general dissatisfaction with the present manager? On the other hand, it seems like the EC has gone off half-cocked. If I were on the EC, and if I were dissatisfied with the present manager, I would be working with the rest of the EC to assess alternative managers, look at their terms, conditions and prices, checking whether other OCs were happy with those managers and only then present a case for a change along with a motion to engage a particular new manager. The EC does not need a general meeting decision to give it permission to research options.
@the dish said:
…but plans were requested as the person was vague on details.That is often the way. People have a lovely idea that would be great to implement. However, they don’t do the work that is needed to make it happen.
With any change, other owners who have no particular interest in the proposal will need to be convinced that it will work out OK. Otherwise they will be very susceptible to scaremongering if a small minority decide to campaign in opposition to the proposal. [Luke-warm support and fierce opposition to any change, as Machiavelli observed]
In any case, the EC has a responsibility to make sure that it is clear what it is that it might be approving, even if it is broadly supportive. Indeed, especially if it would like to see a herb garden go ahead, it would be wise to insure against anything going wrong and killing the idea by making sure it has the details in hand.
@JimmyT said:
…If it’s just a “licence” based on an EC motion, you overturn it at an EC meeting…Ah, that’s interesting. Does the ability in NSW for the EC to give a ‘licence’ for some use of common property have a broad application or is it just for parking? In the ACT the EC can give (and rescind) permission for a ‘minor use’ of common property with or without conditions if the use would ‘not unreasonably interfere with the reasonable use and enjoyment of the common property by other owners’. I know at least one person who has a different view from me on what can be ‘minor’. I had the possibly mistaken impression that even the most trivial incursions onto common property involved by-laws in NSW. Was that wrong?
@the dish said:
A resident would like to build a herb garden, at their expense, on a section of the garden, which is Common property, and has said all residents could access it.Plans haven’t been submitted to the EC but I would be grateful for feedback about this.
If this would be for the benefit of all owners, IE anyone could pick a few herbs, it would not be an exclusive right granted to only one owner or a subset of owners. It would not (in ACT jargon) be a ‘special privilege’. Consequently, I think the EC could approve this in the same way as it could approve some other minor change to the landscaping (say, extending a garden bed and planting some extra bushes). In that case, I don’t think by-laws etc would have to be drawn up, for example. It might be characterised as just gardening, a generous owner offering to plant some different plants and look after them for the benefit of all. If, later the owner moved on or lost interest in herbs, then planting something else is not likely to be a significant problem.
On the other hand, if the area of land involved would be a substantial part of the common property or a non-trivial change to the present use and arrangement of the common property, then the EC should consider putting it to a general meeting. This might be the case if you have only a small area of common property so the herb garden would be a substantial part of the total. It might also be the case if the garden were proposed to go in the middle of an access route or otherwise have an effect on present uses of the common property.
Anecdote: Our rules (ACT speak for by-laws) adopted in the 1970s, had provision for areas of common property to be set aside for growing vegetables etc and divided into plots and allocated to unit owners. The rules also specified that the use of a garden plot would be lost if the unit owner did not tend it properly. IE we were set up to have a community garden. It was established and used for a while into the 1980s but then was turned over to growing trees and grass. A few years ago, some of us proposed using some of our sinking funds to reestablish the community garden (on an an open area near the original garden) as allowed for in the rules with the main expense being a possum-resistant fence. We had plenty of volunteers who would have set up the plots. The area involved would have been less than 1% of our total area of common property. Some owners challenged it before it went to a general meeting claiming that it needed to be considered as grants of special privileges to individual owners who would use the garden and that would (in the ACT) have meant an unopposed resolution. The Office of Regulatory Services agreed with the alternative view that it was not a special privilege since unit owners could lose the use of a plot if it were not looked after in accordance with our rules and anyone could be given use of the plot. In that sense it was more like the tennis court or the playground: we can’t have everyone using those all at the same time but they are available to anyone who wants to use them. In the end the ordinary resolution failed by a small margin after some owners ran a campaign in opposition suggesting that a veggie garden would be an eye-sore, a hazard to children, a source of nuisance noise and all sorts of other ludicrous things.