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I would find out who is on the executive committee and sound them out personally before doing anything formal. See who is sympathetic. If you were in the ACT the situation might be easier. One ordinary resolution of a general meeting is all that is required to install sustainability infrastructure on common property (could be bicycle parking or a solar electric system), so long as the proposal includes various details outlined in the Act.
Is there not a risk also of falling foul of some planning law that might have required that each dwelling be associated with at least one parking space? A condition of building approval for the entire development might have been that there was sufficient parking. I think there is usually a formula of one space per smaller unit and two per larger unit, the definitions of smaller or larger having varied in time and location.
The Act will specify that some sorts of decisions require a special resolution. If the Act does not say what class of resolution, assume an ordinary resolution. It is not up to the EC or OC to decide. The Act tells you what class of resolution is required.
75% is, I think, not quite pedantically what is required. It is correct in effect most of the time. I think it is actually specified as 1) a majority in favour and 2) fewer than a quarter opposed of those taking part in the meeting, in person or by proxy. In principle you could have 60% of those in the meeting in favour (>50% but <75%), 20% opposed (<25%) and 20% abstaining. In that case I think the motion would pass. If it were 60% in favour and 40% opposed and no-one abstaining it would fail.
That is the logic of how it works in the ACT except that it is fewer than a third opposed rather than a quarter. If NSW is not quite like that someone can correct it!
PS with the caveat that I am not a lawyer, I would be sceptical about the argument that a by-law giving exclusive use of some part of the common property (for certain limited purposes, perhaps?) gives exclusive use of air space infinitely above. If permission is for exclusive use of a balcony that is part of common property, it is permission to use the common property that is described as that particular balcony, not the common property that is far above that. An example might be when a person in the flat immediately above has a separate permission to use a balcony which is a different part of the common property but directly above the balcony below. In this case the permission is to use a garden area, not somewhere far above the garden. Common sense says they have permission to use sufficient airspace above the garden to allow them to walk about and enjoy the garden in the usual way, rather than having to crawl but unless they are so tall that they would bump their heads on a balcony I don’t think they have an argument.
@el capitan said:
Hi Peter,with the registered by-law saying “This By-Law may only be amended or repealed with the written consent of the Owner or Owners of the Lot or Lots concerned and in accordance with a special resolution.” there’s no point taking it to a General Meeting to seek that special resolution as we don’t have “the written permission of the Owner of the lot concerned” – and we have, through the original passing of the proposed balconies’ by-law the stated and voted on support of all other lots.
I think it’s likely to go to the Tribunal, I’m just trying to find out if my interpretation of what is covered by the exclusive use grant is correct based on the objector’s interpretation.
Thanks
Sean
In that case, I would think, if the NSW tribunal thinks as the ACT one does, that they would want to see written evidence that you have sought to obtain that written agreement and that a reasonable proposition was put to the relevant unit owner. IE that your application to the tribunal included a copy of the correspondence and any response obtained or a statement that you tried a second time but still obtained no response, perhaps even that the letter was sent as registered mail or hand-delivered to the persons mail box or whatever. Our experience is that the ACT tribunal wants to be utterly certain that all processes that could have taken place within the OC were exhausted and every opportunity for a reasonable response was available before they then give orders to do the reasonable thing.
We had an analogous situation. A unit owner had put up a fence enclosing part of the common property into an extended unit courtyard. The fence also did not comply with any of our several options for fences that may be approved. The owner had stonewalled ECs for several years. Once I was on the EC I proposed that we get serious and deal with it via a breach of rules (ACT word for by-laws) notice. By chance this coincided with the owner deciding to sell. We wrote to the owner, explained that it would be a good idea to comply before selling because the breach notice would be on the EC records available to any prospective buyer to see and it might be a problem for the buyer looking to get a loan. This was ignored.
I talked to the selling real estate agent who was really helpful. I gave them a copy of the breach notice and explained what would be required to correct the breach and what sorts of fence would be acceptable in what locations if a new owner wanted one. The agent informed each serious prospective buyer of the situation and the new owner did promptly remove the fence, preferred to not have a new fence and instead landscaped the area very nicely. A nice result.
It sounds like you have the reworded by-law that would be a satisfactory solution but it is being blocked by one person. Consequently it is not being put to a general meeting to attempt to pass because failure is certain?
In the ACT, our tribunal, ACAT has in several somewhat similar circumstances told us to put the matter to a general meeting anyway so that the proper process can be seen to have occurred. It also gauges support. Then the EC can go back to the tribunal and say: ‘This proposal was supported by a large majority of owners and was consistent with our legal advice but blocked by one or a few people who have been named as respondents. They were then given an opportunity to explain their objections but the EC does not believe they are reasonable and a clear majority at the general meeting were unconvinced. We are seeking orders to give effect to the failed motion on the grounds that objection would be unreasonable.’ The tribunal has regarded this as like an ‘administrative review’. IE It does not decide the individual respondents were reasonable or not; instead it decides if, at the time of the review, whether it would be reasonable for the motion to have passed at the time of the review considering all that is known at that time.
So, I think you might be best off putting the motion to a meeting, having the most support for it you can muster, and then going to the tribunal.
Noting that this is the ACT, we granted a ‘special privilege’ for exclusive use of parking spaces and carports on common property to the owners of specific units. The terms were drawn up by a strata specialist lawyer. The ‘exclusive use’ is limited to the housing of vehicles and a limited amount of other storage. The OC retains the right to exercise any of its other functions in the area, so long as it does not unreasonably interfere with the unit owners use of the space for parking. Consequently, the OC can have a solar PV system on the carport roof, since that does not interfere with the use of the space for parking.
The individual benefiting unit owner is responsible to pay any cost of the OC for construction, repair and maintenance of the carport, but not anything unrelated to parking, such as a pipe underneath the parking space or a PV system on the carport roof.
@Whale said:
The relevant Legislation in the ACT is silent on the subject isn’t it?I’m sure you can handle it Peter, but it sounds about as rigerous a process as our Federal Governments use to invest our tax receipts; wouldn’t pass muster in NSW where my reading of Sect 73 requires the O/C to make such decisions.
I’m Treasurer of our O/C and there’s no way that I’d be making a decision about how and where to invest our Owners’ hard-earned without first putting it to them at a General Meeting.
In the ACT the Act says the OC must open and maintain an account with 1 or more authorised deposit-taking institutions, pay all amounts received into that account and pay all amounts it spends out of that account. (An OC with 2 or 3 units may resolve by unopposed resolution to exempt itself). An OC may invest its money as it considers appropriate, subject to any direction by special resolution. (However, it must not invest in a mortgage of land and cannot ‘carry on a business except in the exercise of its functions’.
The Act also says that an EC can exercise the functions of the OC as it considers appropriate unless the act states that the decision must be made a particular way at a general meeting or a general meeting has directed the EC to act a particular way.
Putting all that together, if a general meeting passed a special resolution to invest the money a particular way then the EC would have to follow. However, in the absence of such a direction from a general meeting the EC can act as it considers appropriate. I would regard the AGM’s acceptance of the (audited) financial statements (showing several bank accounts and interest earned) as ample endorsement to continue with having several bank accounts, some earning higher interest and one working account with sufficient cash more readily available.
But that is the ACT, not NSW. I don’t know what the NSW Act has.
@Costa said:
… including (I am told but doubt our EC or SM would be so bold) more than one Notice to Comply, he now has a large chip on his shoulder, believes he is being unfairly victimised and behaves threateningly and aggressively towards just about everyone. His behaviour is provocative and he is actually frightening…Is there someone less frightening who he gets on with who might be discretely approached and asked to have a word with him?
Perhaps the EC has made things worse by being too tentative? I have seen that happen.
Having said all that, we have someone who just arrogantly lies, says it wasn’t him, leave crap around the place, drives his car routinely over common property making a track where we are supposed to have only rare, infrequent access for unusual circumstance. We are not making much head way with him either. At least our guy is a tenant and more likely to move on eventually.
I am treasurer of our OC. I generally don’t put details about investment to the AGM for a decision. Instead the financial statements each years show amounts in an ‘at call’ account and other amounts in several ‘investment accounts’ with staggered maturity dates. I regard that as sufficient. If any owners care to ask about what rates we are getting, or any other financial matter, I get an answer for them.
Occasionally, the managing agent will ask if it is OK to move some cash as an investment account matures if we are running a bit short in the ‘at call’ account. Other times I will notice we have more than sufficient and could move some the other way to get a higher interest rate and I ask our managing agent to do it without reference to anyone else.
However, if by ‘investment’ you mean putting all the owners’ money into an emu farming venture, then I would agree that the decision should be made at a general meeting!
When our EC proposed to put some money into a solar electric array on the roof of a carport on common property for both environmental reasons and to reduce the OC’s electricity costs, ultimately with a decent financial return on the investment, that was put to a general meeting to decide.
Is there unanimity on the EC? Perhaps you can talk to a few members and find someone sympathetic who can explain what is going on. Perhaps it is one domineering person on the EC?
On an analogous topic our insurer said they only required us to maintain our property to the standards that applied at the time of construction, but any replacements must comply with current standards. Our cover is for negligence. If an accident occurred and we were not found to be negligent then there is no claim. The accident might be tragic and unfortunate etc but not our fault and neither we nor the insurer has to pay for it. If we were found to be negligent then insurance covers it, but our next premium might be a bit higher!
Regardless of insurance, you still don’t want to be found negligent, so the question is whether the old rails really should be replaced. Is fixing or replacing ‘reasonably practicable’ IE not too hard to do and not so expensive as to be out of proportion to the risks. If it is reasonably practicable, I would replace the railings.
If the railings are close to compliance, say, in good condition, only slightly too low, not easy to climb, gaps only slightly too wide and compliant with the previous standard, then I would note that they present only a low risk, but plan to replace them in due course when you might otherwise have had to spend money on them anyway, say for repainting.
@alex20 said:
Thank you for your replies and advice. I was not quite clear in that the rails are on a walkway in front of everyones front door and are applicable to everyone so many floors with rails are involved not just one person per rail. Thanks again.Alex20
In that case, I think it is clear that the OC should decide to upgrade them all on the grounds that it would be a responsible thing to do to exercise its duty of care to residents and visitors. Alternatively, it might reasonably decide to upgrade none of them because they are in good condition and, while not quite complying with the current building standard, are only a small risk being not that far behind the current standard.
Discuss it with any of the other EC members initially. If they can see that it is a matter of principle, even if only a small matter of a hose, then they might have a quiet word to the secretary about bringing back the hose so all can use it.