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As scotlandx has pointed out, carports may (or may not) be common property. Check the strata plan.
In general, carports are common property, unless they are within the cubic space of a lot and are referred to in the strata plan as belonging to a lot, or have been installed by an owner after registration of the strata plan.
LoisLane101 – In general you can’t point a security camera in a location that a reasonable person would expect to be afforded privacy. If you point the camera at your car port space ONLY and away from any windows etc then you should be OK.
You should also disable any audio capability. In NSW or the ACT, the recording of private conversations without consent is prohibited.
Sections 181, 182, and 183 of SSMA 2015 cover access to strata records, including the strata roll.
You are entitled to access the roll. Perhaps, as a mere owner, this may only include owners’ postal addresses rather than email addresses. However you stated that you are an SC member so perhaps email addresses may also be available to you.
Are you the Secretary of the SC?
Below is a legal opinion from Bannermans Lawyers (http://www.bannermans.com.au/articles/strata-and-development/216-owners-corporations-getting-access-to-your-records):
“OWNERS CORPORATIONS – GETTING ACCESS TO YOUR RECORDS
There seems to be a common misconception that an owners corporation requires permission from its strata managing agent to access the strata roll and other records maintained for it by its agent. That access is often denied, frequently citing privacy law concerns. This is a misconception, because these are the owners corporation’s own records and it is entitled to them under various legal principles.
In particular:
- The general principle under agency law is that documents created or held by agents in that capacity are the property of the principal, in this case the owners corporation. Although this would be subject to any contrary provision in the agency agreement, such a provision would be unusual and is not contained in the most commonly used templates.
- Failure by an agent to provide access may constitute a breach of the agency agreement, the agent’s associated fiduciary duties or give rise to a cause of action in tort, e.g. conversion or detinue. In other words, the owners corporation may be able to sue the agent and hold the agent liable for any loss suffered by the owners corporation.
- Owners corporations also have powers under Section 181 of the Strata Schemes Management Act 2015(“SSMA”), which provides in effect that a strata committee can give notice to a person in possession or control of property (including records) of the owners corporation requiring the person to deliver the property to a specified strata committee member, non-compliance being an offence.
- Further, failure to provide access may constitute a “failure to account”, justifying appointment of a manager or receiver under Part 9 of the Property Stock and Business Agents Act 2002 or action of a type justifying disciplinary action under Part 12 of that act.
- These rights, including under section 181 of the SSMA, are subject to any claim or lien which the agent may have in relation to the records. However, whether an agent has a lien at all, which records it applies to and whether it negates rights under section 181 are all complex questions requiring further legal advice if a lien is asserted.
An inspection under Section 182 of the SSMA is not required. That is a procedure available to third parties, e.g. lot owners and is not required by an owners corporation, which is after all seeking access to its own documents, for which it requires no authority.
The privacy laws do not prevent an agent from disclosing, to its principal, information collected or held on behalf of its principal. In fact, the privacy legislation permits personal information to be collected, held, used or disclosed if required or authorised by law. The collection/access in issue is required by various provisions of the (“SSMA”). In other words, there is no sound basis for an agent to claim privacy concerns as a basis for withholding access.
Another common claim by agents, which is also incorrect, is that the relevant records are the agent’s own business records. Records prepared solely for the agent’s own use may be excluded, but the strata roll and other documents normally sought by an owners corporation do not fall into that category.
Accordingly, owners corporations should not feel frustrated by such situations, as there is a great deal which they can do if denied access to their records.”
dclancy – Ask to see a copy of the Strata Manager’s Contract. As an owner you have a right to see the Contract.
There may be a condition in the Contract that requires them to justify their fees.
See also the Code of Conduct for Strata Managers (from the Office of Fair Trading) to assess whether your SM is in breach:
The ‘interesting twist’ (or ‘warning’) is more fully explained here:
The following article re a NSW Supreme Court decision: EB 9 & 10 Pty Ltd v The Owners SP 934 [2018] NSWSC 464, regarding parking access and common property may have some relevance to your issue:
http://turnbullbowles.com.au/keep-out-no-an-owners-corporation-cannot-block-access-to-a-lot/
From reading the Judgement it appears that you do not have to provide access to turn around. Access to a parking position that it only ‘front in’ and ‘rear out’ appears to be permissible.
Committees unfortunately often use this tactic to try and intimidate owners who may be making a legitimate complaint. Anyone who disagrees with these types of Committees is often accused of being “vexatious”!
Did you win your dispute against the Committee?
If the Committee, in one of their submissions, has alleged that you are “vexatious” and the Tribunal has ruled in your favour and not in favour of the Committee then, in my opinion, the Committee’s allegation against you has been disproved.
In my opinion there is no need to take this matter any further.
Anyone who reads the records of any Tribunal ruling in which you were successful and the Committee was not would most likely view the record in your favour and not in their favour.
Anyone who reads the records could view the Committee’s allegations against you as being wrong.
Sometimes complainants are deemed to be ‘vexatious’ by the Tribunal. An article relating to this subject is below:
https://www.abcm.com.au/news/article/dealing-with-vexatious-litigants
The smoking is obviously causing a nuisance to you.
Was a Motion put on the Agenda at the last AGM about smoking? And if so what was the wording of the Motion?
The Model by-laws about smoking can be adopted at a General Meeting. You can propose a Motion and have it voted on. You don’t need the Committee to propose a Motion.
Regardless of any smoke penetration Motion being created, an occupant must not, under the Legislation, cause a nuisance and/or hazard. This would be a breach of the Act.
The Owners Corporation could stop a person from smoking under the nuisance/hazard provisions of the legislation if the Owners Corporation could prove such nuisance/hazard being caused. It is therefore up to you to raise this matter in writing with the Strata committee and if you receive no support from them then you would need to take this matter to NCAT.
The Model by-laws relating to smoking are below:
9 Smoke penetrationNote.Select option A or B. If no option is selected, option A will apply.
Option A(1) An owner or occupier, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property.
(2) An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.
Option B(1) An owner or occupier of a lot, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property, except:
(a) in an area designated as a smoking area by the owners corporation, or
(b) with the written approval of the owners corporation.
(2) A person who is permitted under this by-law to smoke tobacco or any other substance on common property must ensure that the smoke does not penetrate to any other lot.
(3) An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.
JC – If the new Fire Safety Service recommends that the items be dropped from your list then I wouldn’t worry too much about dropping them.
The strata scheme and the strata scheme agent are not expected to be the ‘experts’. That is what you employ the Fire Safety Service company to be!
As an owner of the building or as an agent you are only signing off on the fact that the building has been assessed by a ‘competent fire safety practitioner’ and that the ‘competent fire safety practitoner’ found everything that needed to be assessed to be capable of performing as required.
Click here for links to the various Fire Regulation Forms and some Q and As that may be helpful:
Section 7: Annual fire safety statement declaration
I, (insert full name)
being the (mark applicable box) ☐ owner
☐ owner’s agent
certify that: a) each essential fire safety measure specified in this statement has been assessed by a competent fire safety practitioner and was found, when it was assessed, to be capable of performing:
- in the case of an essential fire safety measure identified in Section 5 of this form and the fire safety schedule – to a standard no less than that specified in the schedule, or
- in the case of any other essential fire safety measure identified in Section 5 of this form – to a standard no less than that to which the measure was originally designed and implemented, and
- b) the building has been inspected by a competent fire safety practitioner and was found, when it was inspected, to be in a condition that did not disclose any grounds for a prosecution under Division 7 of the Regulation.
clockwise – Your strata scheme can do a lot of this investigation themselves, and can ‘negotiate’ with the insurers after the information has been obtained.
You may be interested to listen to and download the Amanda Farmer podcast where this issue is discussed. Amanda Farmer is a specialist strata lawyer.
https://www.yourstrataproperty.com.au/103-reducing-the-hysteria-around-combustible-cladding/
The podcast suggests that you need to find out exactly what type of cladding was used on your building – there are several different types of cladding.
You can find out the information about the cladding on your building by contacting the certifying entity for your building. The building certifiers are experts in what certificates are needed and what standards and compliances were needed, and whether all were obtained.
The podcast suggests that you ask the certifier (1)What certification was mandatory around my cladding at the time of practical completion? (2) Did we get it? (3) Is there a problem with my cladding and do I need to investigate that further?
Erte – Some ideas for you:
Check the Budget from your previous AGM to see whether there has been a Budget item for the garden, and check how much money has been set aside for the budget.
You are perfectly within your rights to seek out a quote for the garden make over and submit your concerns and the quote to the Committee via the Strata Manager.
Find out what the Committee spending limit is for your scheme. If the cost of the make over fits the Committee spending limit then I suggest that you ask the Committee to approve the garden makeover at the next Committee meeting.
Some scheme’s that have owners who are interested in gardening also have a ‘gardening group’, sanctioned by the OC, who volunteer their time to maintain certain elements of the garden.
If the cost of the garden make over is larger than the Committee spending then you will need to submit a Motion to the next AGM.
If the garden budget is too small and needs to be increased then this will also need to occur at the next AGM.
dwa – I am not sure what the situation is in your state of WA but in QLD it is a misconception that a Body Corporate Manager is responsible for getting quotes. Getting quotes is not the role of a Body Corporate Manager.
The Body Corporate is responsible for getting quotes.
See this article written by Chris Irons, the Qld Commissioner for Body Corporate and Community Management:
To clear up the confusion and the ‘incorrect’ information on the OFT site about the responsibility for the window locks please read this legal opinion:
John – My interpretation of the comment on the OFT site is this:
The obligation to install window locks cannot be passed on to a lot owner or tenant, however, a lot owner may elect to install the safety locks themselves.
When and if this occurs, the lot owner must ensure that the devices meet the legal requirements and that they are responsible for the cost, maintenance, and any damage to common property resulting from the installation.
In my opinion that is the only situation that will trigger the following action that you alluded to above: The owners corporation can adopt a common property rights by-law which confers the right and obligation to install and maintain any locking or safety device to individual lot owners.
I agree that the wording on the OFT site is confusing but my interpretation is that the two parts of the information (included below) should be read together rather than in isolation.
The OFT site states:
As a lot owner, do I need to obtain permission to install a window safety device in my own lot?
Although the owners corporation has principal responsibility for the installation of window safety devices, lot owners have the right to install window safety devices themselves.
However, lot owners would need to pay for the costs involved and must make sure the devices meet the legal requirements. Lot owners must notify the owners corporation within 7 days after completion of the installation. Lot owners who install devices are responsible for any damage to common property from the installation.
Can the installation of window safety devices be delegated to each individual lot owner?
The owners corporation can adopt a common property rights by-law which confers the right and obligation to install and maintain any locking or safety device to individual lot owners.
The owners corporation can also consider adopting the model by-laws located in Schedule 3 of the Strata Schemes Management Regulation 2015. The model by-laws allow individual lot owners to install and repair window safety devices in their own lot without obtaining consent from the owners corporation. Any locks installed this way must be maintained by the individual lot owner.
NB: The window safety devices requirements are found in the Strata Schemes Management Act 2015 s 118, 122, 129, Sch 3 cl 13 and the Strata Schemes Management Regulation 2016 cl 30, 31.
Flame tree – An owner can inspect the Body Corporate records in Qld. If you want to inspect a lot of ‘old’ receipts then I suggest that you physically attend the Body Corp Manager’s office to do this:
https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/records/access-records
There are Codes of Conduct for both Committees and Strata Managers in the Qld legislation. Hidden commissions would not be permitted.
The Strata Manager’s and Service Contractor’s Code of conduct is here:
http://www5.austlii.edu.au/au/legis/qld/consol_act/bcacma1997388/sch2.html
Clause 10 states:
10 Goods and services to be supplied at competitive prices
A body corporate manager or caretaking service contractor must take reasonable steps to ensure goods and services the person obtains for or supplies to the body corporate are obtained or supplied at competitive prices.