Forum Replies Created
-
Replies
-
General meeting procedure is for minutes to be accepted as accurate as a decision of the next meeting. In practice our EC often circulates a draft of minutes among ourselves by email. Usually one or other of us will have a few changes to suggest. When we are agreed it is forwarded to the manager. At the next EC meeting we record the ‘out of session’ decision to accept the minutes.
An EC resolution directing the strata manager to do specified maintenance would be the formal process. With only three of you, I expect a call from one of you neighbours supporting your position would be enough.
I would check the Act in the relevant state. I would expect from ACT experience that any EC member can call a meeting with 7 days notice. In your case I would guess that 2 members would be a quorum of the EC so you could not make decisions on your own. I think some small owners corporations make each meeting a general meeting which enlarges the range of decisions you can make. However, I expect that the acts in various states would require greater notice for a general meeting and notice of the motions to be put. In the ACT a petition of 25% of members can require the EC to call a general meeting. If you have a similar provision you could call a general meeting.
I assume the OC employs the caretaker through the EC. If there are many duty of care aspects of common property that are not being maintained, then the first thing I would do is write to the EC to ask that the common property be maintained, specifying the problems. The OC, through the EC, has an obligation to maintain the common property. If the EC is not requiring the maintenance to be done, then they are the problem. If the EC is trying but the caretaker is not following their direction then you may have allies. Ultimately, you can put a motion to a general meeting. The EC must act on the direction of a general meeting (unless it would be illegal).
Is it the OC that won’t do an audit or the strata manager or EC? If a general meeting resolved that the accounts be audited then they must be. We have it included in our rules (aka bylaws) that the accounts be audited.
$1440 on average per unit this year. 105 townhouses in the ACT. We have playgrounds, 11.4Ha total area, managing agent, tennis courts (basic clay courts), pizza oven and BBQ (basic wood), 9.1kW PV system offsetting our public lighting costs, some patches of remnant bush, a flat playing field area, but we were not successful in getting a community garden reestablished even though we had it in the original design from 1976. We are very lucky that most of the asphalt is a public road and all of our utility mains are in easements that we don’t own so there is not much in the way of big ticket items to cover in our sinking fund.
If the units are worth about $500K on average, we have a 0.28% levy to value ratio. Next time people grumble about fees (I am treasurer) I will have to point out how low this is on the Jimmy T scale.
Some years ago our (ACT) EC issued a breach notice to a unit owner about a fence that had been erected without permission and enclosing an area of common property well beyond the unit boundary. Some previous ECs had tried to deal with it and got nowhere. [In their defence they were dealing with an earlier version of the Act that had less clear processes for dispute resolutions.] The unit owner ignored the breach notice but soon after put the unit up for sale.
We wrote to the owner that removing the fence might help to avoid problems that a potential purchaser might have getting a loan because banks would want to know if there were any unapproved alterations. We also wrote to the real estate agent including a copy of the breach notice and asking him to advise any purchasers who seemed seriously interested that the fence would have to be removed and that the unit area was actually smaller than the enclosed area suggested. We put a copy of the correspondence on the records where they could be found. The real estate agent was very good about it. He checked with the EC to make sure he understood exactly where the unit boundaries were, what kinds of fences could be approved and where. The people who bought the unit took down the ugly, wrong-sited fence promptly, enquired about putting up a new fence of an approvable sort in the right place but in the end preferred the view without a fence and landscaped the area very nicely.
If you are sure of your position and deal openly with all concerned, I think good outcomes can be achieved, particularly at the time of a unit sale.
For what it is worth, I have had generally good impressions of the ACT’s equivalent, the ACT Civil and Administrative Tribunal. I have been involved in 7 matters, on each occasion as an EC member. I have generally been impressed with the way the tribunal member conducted the mediation and/or hearing. On two of those occasions we were represented by a solicitor because the matter was sufficiently serious that we had to get it right. Only on the most minor matter was I unimpressed with the tribunal member. Ironically, he was the most senior ACAT member we encountered.
The matter was very straightforward. A unit owner had erected a fence that enclosed an area of common property. It was understandable that the owner had thought that it was part of the unit area but the unit plan showed unequivocally that it was not. We had decided to deal with all three instances of unit owners enclosing common property at the same time in the same way. The other two units were, by chance, about to change hands and these were resolved when the new owners removed the unapproved fences, having been made aware of the situation while they were purchasing. The third owner was not selling at that time and dug in his heels. The ‘breach of rules’, properly notified, therefore became, automatically, an ‘ACAT dispute’.
The ACAT member did not appear to have read our application and asked why the EC could not just compromise and let the unit owner keep the fence and the enclosed bit of common property. I was astonished to have to explain that the Act says that gaining exclusive use of an area of common property is generally a ‘special privilege’ and that requires an unopposed resolution of a general meeting. [There is an exception in the ACT legislation whereby the EC can grant a ‘minor’ use, subject to various conditions, but the EC had decided that those conditions would not be met in this instance.]
Aside from that example, the ACAT members have been diligent, shrewd and very fair in my experience.
This seems to be a thing that takes a change of culture. A few years ago around here carrying a bag and picking up dog poo was not widely practiced. Now it is nearly universal. You can buy rolls of little dog poo bags at the supermarket. Do you have a newsletter? Try putting an article in. Also, your articles/by-laws/rules would almost certainly have something general and catch-all about not interfering with the reasonable use and enjoyment of the common property by other residents. That would include not leaving faeces where others could have their enjoyment interfered with. A newsletter article could remind residents that not collecting their faeces is a breach of the rules.
The ACT had some major changes that finally came in 2012 (the Unit Titles (Management) Act 2011). Some useful fact sheets are here:
https://www.justice.act.gov.au/review/view/17/title/unit-titles
Changes include s.23 which enables sustainability infrastructure to be installed on common property (eg. a solar array or community garden) with a single proposal and ordinary resolution so long as various things are contained in the proposal. To boast for a moment: This came out of my submission to the review of the legislation. Our OC had twice tried to install a solar electric system on the roof of a shared common property carport roof that would cover the costs of all our common property lighting and match our consumption with as much renewable generation. Both times we did not get it passed even though a majority approved each time. A minority successfully blocked it. Our story got the legislation changed.
Another change renders invalid any by-law that prevents the installation of sustainability measures. So, for example, you can’t be told you can’t install double glazing or that you can’t have a clothes line and must use an electric drier or can’t put solar equipment on the roof of your townhouse.
Another change made it more explicit that the sinking fund can be used to anticipate and fund infrastructure upgrades and additions, not just purely maintenance.
In the ACT, perhaps also where you are, the legislation requires a person to seek permission to keep an animal, but permission cannot be unreasonably refused. If you have the evidence of having tried to seek permission, I would think you are covered.
Surely one of the by-laws or part of the relevant state legislation is that all owners must be able to have reasonable use and enjoyment of the common property (or words to that effect). If you are denied access to the BBQ (common property) then that also is a breach of the by-laws. Surely the two cancel?! If you are still up carousing at 3 AM and keeping everyone awake, then you would have breached a valid by-law.
An arborist could give you a quote for the work and could also advise whether the tree would be a ‘regulated tree’ or whatever the WA equivalent term would be. If it is regulated you might need permission to undertake a ‘tree damaging activity’ and again, an arborist could advise whether the pruning would amount to that or not.
Does the OC have a lot of trees? If so, I would have expected it would have some established practice for them such as a preferred tree surgeon and a line in the budget for their management.
@bcr83 said:
I will put forward a request to my SM to take this matter to the Tribunal.
Have you had any personal experience with going down this road?
I am in the ACT. I have experience with the ACT tribunal but only as an EC member. We have had several instances of seeking orders to ‘give effect’ to failed general meeting motions that had the support of large majorities but needed an ‘unopposed resolution’. We also had several instances of OC members taking the EC to the tribunal because they wanted us to do or not do something. (Eg. The EC declined when an owner wanted us to remove a rather magnificent tree from common property that arborists had advised was in good health etc. The owner took us to the tribunal, the tribunal said the owner should put it to a general meeting, the EC agreed to call a meeting, the owners motion did not pass, the owner took us back to the tribunal seeking orders to give effect to the failed motion on the grounds that it would be more reasonable for it to have passed, the tribunal dismissed the owners application to force us to remove the tree after hearing arguments for a full day.) In those instances the trend seems to be that the ACT tribunal sends us away to try to decide the issue via the democratic process of a general meeting and only return to the tribunal if parties are unhappy with the outcome of that process.
In the ACT you can search past decisions of the tribunal from their website. I suggest looking for A/C decisions if you want to go by this route. I don’t know how much help you would get from the SM. They would be a source of some advice.
You could put a motion to a general meeting. General meeting decisions over-ride the EC. I would emphasise that the situation of your unit is unique – smaller balcony but access to the side wall, therefore your proposal could not be a precedent for others. Indeed, I would include it in the motion that this approval is not to be a precedent for others since they can use their balconies.
I would sound people out to make sure you would have the numbers first.