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If your daughter has documentary evidence of the prior damage I would think she should be able avoid paying for the repair.
I think I wrote “…Of course make sure you respond properly in due course to any matter that has substance…” IE. Sometimes an EC has to deal with someone who is being unreasonably difficult. Other times the EC should be grateful that someone has brought to their attention some serious matter that should be attended to promptly.
My experience on ECs has tended to be that owners who do actually have some reasonable matter that could or should be usefully addressed by the EC are often shy about bothering us. In contrast those with unreasonable gripes are often less shy. IE you get all sorts. The EC has to try to get it right.
One thing to do is to quickly check that there is not anything truly urgent such as burst water main, then wait a day or two, and then write to thank the person for their contribution and say the matter will be considered at the next EC meeting. People like this are looking for the satisfaction of making you jump. Of course make sure you respond properly in due course to any matter that has substance but slow down a bit so you are not dancing to this owner’s tune. If their self-important ego is not being stroked as much they often go and bother someone else.
Make sure the EC can laugh about it and build some supporting solidarity there. The most destructive thing about people like this is that people who have joined the EC for the first time and might grow to make a useful contribution get put off and never come back.
So, what is the project? I only have experience from the other side of the fence. That is, being on the EC trying to develop some good projects and trying to communicate about them to the owners while having to counter misrepresentation of our proposals by a few owners who object to making any improvements to the site. If the ideas are broadly ‘a good idea’ and your only concern is about process, say, insufficient quotes or project detail, why not talk to the EC members? Indicate that you are not necessarily opposed but would like to understand more about the proposal.
Our OC in the ACT has a communally owned PV system on common property (a shared carport roof) which connects to a meter box which supplies lighting to the common property. IE an account paid by the OC. We got a tax ruling on gross feed-in-tariff income.
Key points:
1) If the feed-in-tariff is gross then it is unrelated to consumption and all is taxable.
2) If the FIT is net, then only the excess you produced, exported and have been paid for is taxable. The rest is just making power you have used yourself and it is not taxable. A block of flats with lots of lights running constantly during the day in an underground carpark and corridors could easily offset a lot of electricity without ever exporting. In such a case it would be simple. No tax, no FIT, just a lower apparent consumption and electricity bill.
3) If you resolve that the OC will hold the PV system ‘in trust’ for the owners, then the income is assessed simply and once as non-mutual income of the OC at the business tax rate of 30%, just the same as non-mutual income you probably have from bank interest.
4) If the OC does not use the ‘in trust’ resolution, then the PV system is just a part of the common property that is held in most states by the OC as ‘agent’ for the owners. It is the ‘agent’ relationship that results in the nuisance requirement to divide up the income according to unit entitlements and then each owner has to declare their little bit on their tax return. As different owners have different marginal rates this results in a different benefit to different owners and the whole idea becomes difficult. Better to use the ‘in trust’ resolution!
5) If the OC is receiving income from the PV system, the OC can claim depreciation, linear over 20 years.
Note, Whale has it the wrong way around. ‘in trust’ lets income be done simply, once on the OC tax return equitably with benefit to all owners through lower levies in proportion to unit entitlements. Having each owner required to declare their little bit is what you want to avoid.
If an area of common property is gated off and access by other owners is prevented then I think you should do something about that very promptly. Either get a general meeting resolution to grant exclusive use with the condition that maintenance is the unit owner’s responsibility, or you need to ensure access and inspection is possible by any owner at any time to ensure that the OC can observe, address and fix any safety issue that might arise in the area.
Who holds the title to the easement and what is the stated purpose and conditions of the easement?
For example, within our common property we have some easements through which the local utilities provider has some pipes. If something goes wrong with the pipes it is their problem to fix. In the case here it seems the purpose of the easement is to have a footpath (like a pipe for members of the public). So, I would guess that the local council has title to the easement and responsibility to maintain the path. However, I would also guess there are conditions around the easement. In our case we cannot do anything on the easement that would interfere with the pipes or prevent access to them if they need repair. Consequently there are certain structures we could build on that bit of our common property but not other structures. Among the things we could build, it is our responsibility to maintain them because they have nothing to do with the purpose of the easement.
It might be that it is your trees that are doing damage to the councils path and so you might be responsible to remove them. On the other hand, if the councils says you can not remove them, then the council will just have to repair the path and maintain it in spite of the trees.
You could ask your EC if they would 1) enforce the by-law if you did use a clothes horse on the balcony or 2) if a screen such as you suggested or some other form of screening such as they might think of would enable you to avoid offending the by-law. Nobody should be forced to use a clothes dryer!
I have mentioned it before but this bylaw would be probably be invalid in the ACT unless the alternative solar powered clothes drying facility were reasonably convenient to use.
I think the OC is right to insist that the work on common property comply with standards. They would be negligent if they didn’t. If you are the only owner to benefit you should pay for the work. It would not be reasonable to refuse to allow the insulation to be installed.
That is comforting thank you. So, the CTTT can simply throw out a By-Law such as this? That would be good, but controversial. I was also wondering about the bit in the By-Law which says “The proprietors for the time being of each lot…”, wondering if that implies when a lot is sold or let, the By-Law is no longer valid. I didn’t mention currently half the ten units with spaces are let and half owned. Also some sub-letting of these spaces occurs for cash which is probably against the ‘rules’.
The phrase ‘for the time being’ means ‘at any time’. This is a standard phrase which means parking space was allocated to whoever is the proprietor of the unit at any particular instant. So, at the moment the unit changes hands the new unit owner gets the parking space. It is a way to say the allocation is to a person but the person is defined as whoever it is that owns that unit at any moment. Put another way it is a way to make the allocation run with the unit even though the Act may have required an allocation to a person.
We did exact this in order to have every unit allocated a covered parking space in our development and have the arrangement stick with the unit as it changes hands.
On the matter of having the bylaw require an unopposed resolution to be rescinded, that sounds unlikely to be valid. A bylaw would only have effect (IE be valid) to the extent that it is not inconsistent with the Act. If the Act says an bylaw can be rescinded by a special resolution (that is what it is in the ACT, not sure for NSW) then what the Act says goes.
Certainly in the ACT our tribunal can overturn a bylaw. If a resolution to overturn it is unsuccessful the motion can be given effect on the grounds that the opposition was unreasonable. I would expect NSW to have a similar provision.
I believe that one aspect of passing a by-law is that it requires the consent of all affected owners – might be different in the ACT, but if consent was not provided then does that provide an avenue for the now negatively-affected owner for potential recourse?
Two things.
1) I don’t think we have anything about consent by affected owners in our Act.*
2) It has become apparent that the rule (bylaw) was in place well before this owner decided to let out his unit in this way though it seems he may have been advised it was OK by a strata manager who didn’t check the OC’s rules.
*If a rule were passed that was unfair to a particular owner or a minority of owners, the solution would be to have the ACAT (our Tribunal) give orders to amend or rescind the resolution that adopted the rule.
I got this question via another route. Initially I replied:
The first thing that occurs to me is to ask what exactly was passed at
the AGM:
Was it just an ordinary motion, from the floor, with no notice given to
members?
Was it notified to all owners as a motion on the agenda (IE that you had
a chance to see and respond to at the meeting)?
Was it decided as a ‘rule’ (aka by-law or article)?
If it was a new rule, was the motion passed as a ‘special resolution’ (a
higher standard is required to adopt a new rule-it has to have a majority
in favour and fewer than one third opposed of those present and entitled
to vote, in person and by proxy.
If it was a new rule, was the rule registered with the land titles
office?
Was the meeting a ‘reduced quorum’ meeting (fewer than 50%
represented)?
If it was a reduced quorum, were the decisions notified with the
required form within 7 days?In any case, this might be something to sort out via an ACAT dispute but
get the facts first.
The ACAT can give orders to overturn a decision or to modify a decision
or to substitutes its own.
It might, for example, decide that it was reasonable for the owners
corporation to decide to not allow further tenancy arrangements such as
yours but to add a ‘grandfathering’ clause that allows your unit to
continue to operate as it has until such time as you are no longer an
owner.The only other thing that occurs to me, about which I am unsure, is
whether the short-term leasing would have be illegal all along. I assume
that the unit is zoned as residential and that probably has a definition
that includes the length of time people spend in a unit. An issue that
might have concerned the OC is whether it would be required to comply with
the sorts of things that hotels have to have but don’t apply in standard
residential areas.Then the original poster sent a copy of the minutes of the 2007 general meeting at which a rule (aka Bylaw/Article) banned this sort of short term letting in the complex. The original poster had been an owner since 2004. The special resolution to adopt the rule was notified to owners and then passed at the meeting. It all looked above board. Allowance was made to phase out the then-existing short term letting. Consequently I don’t think the poster has any recourse since they started the short-term letting well after the new rule came into effect. I then wrote:
Hi,
That all looks pretty water-tight to me. The motion was notified. The notice and minutes acknowledge
the difficulty for pre-existing short-leased apartments and a transition period is implied by the
comment under the resolution. As an owner from 2004 you would have received the notice of the 2007
meeting and the minutes of the meeting. Whether the correct form for a reduced quorum was used or
not, I doubt being pedantic about that would help. All the information required on the form is
contained on the first page of the minutes.
One could check whether the amendments to the Articles/Rules were registered. They should be to
have effect. As it happens, I know (one of the EC members) slightly and I doubt he would have failed to
ensure the Articles were registered. Even if they were not registered, they could be registered now and
they would become valid. If you had bought the unit more recently than 2007 and inspected the
registered articles at the time you might have some argument for fairness but even so you would not
be entitled to greater consideration than was given to those who were short-leasing in 2007 and that
was only a chance to phase out the practice with the help of the EC. As it is, you owned the unit in
2007 and would have had notice of the amendments to the Articles then.
Finally, as the newspaper article suggests, short-leasing is probably contrary to the lease conditions of
the overall property and you would also have a catch-all rule requiring that members of the owners
corporation comply with any legislation in force in the ACT. That would require the owners corporation
to comply with the lease conditions of the property (IE residential purposes, not short leases). Even
without the specific short-leasing rule, you would probably be caught out by the general rule on
compliance with legislation and the OC would be obliged to enforce it via the EC.I think it is all pretty clear now,
Sorry!
Peter.
@Whale said:SpaSpray – frankly, I’d be more concerned about the fact that an average spa weighs around 2 tonnes (when full of water and people).2 tonnes is only 2 cubic meters of water. I don’t know a lot about spas but I could imagine that 1m deep x 1m wide x 2m long is a modest sized spa. It could be heavier! A serious safety issue is quite possible also if that is put on a balcony.
Our routine financial statements list each unit in arrears and the amount but only by unit number, not by name. We also list each unit not in arrears and the amount by which they are in credit.
The budget figures include the total amount received as arrears penalties but not listed by unit numbers.
Yes, I know from bitter experience that it is easy to knock over a special resolution. A concerted campaign to round up a sufficient minority of ‘no’ votes does not need to do much more than assert that there are ‘questions to be answered’. No matter that in our OC the questions had been answered in the detailed written proposal. People seem to pay far more attention to someone talking than a carefully prepared written proposal mailed to owners.
Of course, the proposal originally raised here might have insufficient information and it might be a lousy proposal. If that is case it should be easy to defeat: 30 owners. Say 20 take part in the meeting. All you need to find is 4 others in whom you can sow just enough doubt that they give you a proxy to say no.
Still, I would urge you to find out if it might actually be a good proposal by talking directly to EC members. Perhaps they just were not so good at writing the proposal? Perhaps they don’t realise that various merits of the proposal are not obvious, and things they thought would go without saying actually do need saying?