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Here is an interesting Podcast from Amanda Farmer (a specialist strata lawyer from Your Strata Property) regarding the issue of electronic voting:
https://www.yourstrataproperty.com.au/106-resolving-the-confusion-around-electronic-voting/
There are companies that assist in the setting up of electronic voting for your strata scheme e.g. Stratabox.
There are both benefits and pitfalls of electronic voting.
As a Queenslander who has never voted any other way, (even though I still turn up to AGMs when I am able) I find electronic voting, via emailing back the completed voting form prior to the AGM, to be a way of including all owners, even those that do not live in the area.
Qld has many owners from interstate and overseas who would not ordinarily be able to attend an AGM and cast a vote in person.
As a comparison between Qld and NSW, I have provided a link below to the Qld system for nominating Committee members. Nominating and voting for a Committee is a well organised and simple system and one that NSW may consider adopting one day.
Unless notified otherwise it would be reasonable for the SM to assume that you reside at the address of your Lot, and that you would collect your mail.
The fact the Notice was not addressed to you personally, if your name is on the Roll, raises some ‘red flags’. The Notice should contain the name of the person who is registered on the Roll.
I know, myself, that I don’t often even open letters that are addressed to “The Homeowner”.
However, this may not be a strong enough position for you to avoid an additional charge for another call out, particularly in light of the fact that you have stated that you did not collect your mail.
Why don’t you write to the SM and state that for all future notices that your address for correspondence is to be your email address, rather than a postal address? Then it is on the record.
If, as you say, other owners have also been impacted then perhaps you can all share the cost of the additional call out fee in this instance.
The relevant section for ‘Service of documents’ is here:
SSMA 2015
s 263 Service of documents by owners corporation and others
(1) Application of section This section applies to a notice or other document required or authorised under this Act or the by-laws to be given by the Secretary, the Tribunal, an owners corporation, the lessor of a leasehold strata scheme, the original owner, a strata committee, the secretary of an owners corporation or a strata managing agent and is subject to the other provisions of this Act.
(2) Service on occupier of lot A notice or other document may be given to the occupier of a lot:
(a) by post at the address of the lot, or
(b) by leaving it at the address of the lot with a person apparently of or above the age of 16 years.
(3) Service where address is included in strata roll If an address for the service of notices on a person is recorded in the strata roll or has been notified in a tenancy notice, a document may be given to the person:
(a) in the case of a postal address, by post at that address, or
(b) by sending it by electronic transmission to an address or location nominated (in correspondence or otherwise) by the person as an address or location to which correspondence can be sent, or
(c) by leaving it at that address with a person apparently of or above the age of 16 years.
(4) Service on owner of lot A document may be given to the owner of a lot in accordance with subsection (3) or if no address for service is recorded on the strata roll:
(a) personally, or
(b) by post at the address of the lot, or
(c) by leaving it on a part of the lot that is the owner‘s place of residence or business (otherwise than on a part of the lot provided for the accommodation of a vehicle or as a storeroom), or
(d) by leaving it in a place provided on the parcel for receiving mail posted to the lot, or
(e) in any other manner authorised by the by-laws for the service of notices on owners.
(5) Service of notice to produce certain records and property Notice under section 182 may be given to a person:
(a) personally or by post, or
(b) by leaving it with a person apparently of or above the age of 16 years at the place of residence or place of business of the person who is to be given the notice.
(6) Service on person where building included in part strata parcel A document may be given to a person in whom is vested an estate in fee simple, or, in the case of a leasehold strata scheme, a leasehold estate registered under the Real Property Act 1900 , in part of a building or its site, another part of which is included in a part strata parcel, in any manner provided by section 170 of the Conveyancing Act 1919 .
You are a landlord so I am assuming that you do not reside at the scheme.
Is the physical mail box that you are referring to a physical mail box at the scheme or is it at your actual place of residence?
If the mail box is at the scheme and you do not reside there then why is the Strata Manager sending Notices to that address?
Check with the Strata Manager to find out what address they have on the Strata Roll for the sending of correspondence and Notices to you. Update the Roll if necessary.
If the SM has made a mistake and sent the Notice to an incorrect address then you should not have to pay for their mistake.
From your account of the past preventative action taken by the OC (or lack of it), in my opinion it would not be sufficient to have the OC’s responsibility for the termite damage waived.
Termite inspections were not carried out frequently and no bait stations etc were installed, even though they were recommended.
In my opinion the OC clearly did not do all that it reasonably could to take preventative action to mitigate against termite damage.
Had the OC been more pro-active, including the undertaking of annual inspections and the implementation of a bait station and monitoring program etc, then my opinion would be different.
From reading ‘old’ Flat Chat comments on this topic, you might find the following info helpful:
https://www.flatchat.com.au/topic/building-and-maintenance/fire-safety-audit/
Do you have a Contract with this company or were they only employed to undertake an Audit? If there is a Contract then you might need to check the contract carefully about who can carry out the required work. ‘The devil is in the detail’.
If something is ‘recommended’ it probably would not be deemed to be mandatory.
newslie – I agree with you that the Committee does not have the authority under the Act, and under the circumstances that you have described, to enter your property.
There appears to be no maintenance work that is relevant to your Lot, no emergency safety issues, and no Order from the Tribunal.
Is there a By-law forbidding washers and dryers from being installed in the Lots?
If there is no such By-law then there is no reasonable justification for them to enter your property and check for breaches.
Creating some sort of photographic data base for a future hypothetical maintenance problem would not be a reasonable justification for a ‘forced’ entry to your property, in my opinion.
If the OC were determined to obtain access and took this matter to NCAT and you were ordered to allow then access than that would be a different matter. Until that time I would say “no” to the access.
The relevant section of SSMA 2015 that would support your denial of access is here:
Section 122 Power of owners corporation to enter property in order to carry out work(1) An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel of the scheme for the purpose of carrying out the following work:
(a) work required or authorised to be carried out by the owners corporation in accordance with this Act (including work relating to window safety devices and rectification work carried out under Part 11),
(b) work required to be carried out by the owners corporation by a notice given to it by a public authority,
(c) work required or authorised to be carried out by the owners corporation by an order under this Act.
(2) An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel for the purpose of determining whether any work is required to be carried out by the owners corporation in accordance with this Act.
(3) In an emergency, the owners corporation may enter any part of the parcel for those purposes at any time.
(4) In a case that is not an emergency, the owners corporation may enter any part of the parcel for those purposes with the consent of any occupier of that part of the parcel or, if the occupier does not consent, in accordance with an order of the Tribunal under this Division.
(5) A person must not obstruct or hinder an owners corporation in the exercise of its functions under this section.
Maximum penalty: 5 penalty units.(6) An owners corporation is liable for any damage to a lot or any of its contents caused by or arising out of the carrying out of any work, or the exercise of a power of entry, referred to in this section unless the damage arose because the owners corporation was obstructed or hindered.
From my understanding of the Act the word ‘may’ indicates that it is an optional provision. The Act would say ‘must’ if it was mandatory.
Therefore the suggestion that I made about electronic voting at an AGM for committee members shouldn’t conflict with the Act, provided that this had been approved by the OC at a general meeting prior to the change of procedure.
A suggestion for the OC with regards to ‘getting to know’ the candidates would be to require that each candidate write a short paragraph about themselves and their experience, possibly a max of 100 words. An OC may even want the candidate to include a photo.
The Electronic Transaction Act should provide guidance as to how electronic voting is conducted:
https://www.legislation.nsw.gov.au/inforce/235adf26-6085-6179-8cbd-d0ddf6bbdab4/2000-8.pdf
Clarification can be sought from the OFT.
Electronic voting works VERY well in QLD.
Apologies about the ‘seconder’.
To clarify the confusion regarding the situation of electronic voting for general committee positions (and/or specific committee positions) the OC could adopt a Motion requiring that owners are nominated and seconded for committee membership (or specific positions within the committee) prior to the AGM and these nominations are included on the Agenda of the AGM, and that no nominations can be accepted from the floor of the meeting.
The Act states: “A nomination may be made at any time before the election is held and may be made at the meeting.”
Note the word ‘may’ rather than ‘must’. ‘May’ means that this is optional.
An electronic voting form would then be attached to each AGM Agenda and would be required to be returned prior to the meeting time.
This allows people the choice to either attend the meeting in person and vote, or vote electronically. This is very common in QLD.
Electronic voting frees people up from having to give their proxies to someone else if they cannot attend the AGM, and allows people to vote without fear of pressure or persecution.
This is clearly permitted in the Act.
Schedule 1 Meeting procedures of owners corporationDivision 3 Manner of voting28 Manner of voting(1) A vote at a meeting by a person entitled to vote or by a proxy must be cast in person unless the owners corporation, by resolution passed at a general meeting, determines that a vote may be cast by some other specified means.
(2) The regulations may make provision for or with respect to the following:
(a) the means of voting (other than in person) that may be adopted by an owners corporation,
(b) without limiting paragraph (a), procedures for voting by those means,
(c) prohibiting or requiring the use of specified means of voting.
JT – I agree that it is confusing.
In the context of the AGM and electronic voting, I took “office bearers” to have a wider meaning of “committee” i.e. the bearers of the office of committee member, rather than the narrower meaning of a specific office within the committee.
As you rightly pointed out the specific office can be determined by the committee members themselves, once the members have been appointed.
It is my understanding that the OC can propose a Motion to remove this function from the committee and appoint owners to specific positions on the committee if that is what the majority would prefer.
All other Motions, except for the nomination of office bearers must be submitted prior to the AGM and must be included, exactly as submitted, on the Agenda, therefore electronic voting prior to the AGM is practical for those Motions.
However, this is clearly not practical if nominations can come from the floor of the meeting and exact nominations are not known at the time that the Agenda notice is published.
Does that make sense?
Your OC should be mindful of a conflict on interest with the Manager being a family member of a committee member.
The former Chairperson, should they return to the committee, would definitely not be able to have anything to do with the appointment of the Manager if the Manager is a family member – that includes both proposing and voting for the Manager.
Why is the OC contemplating changing the current Manager and reverting to the previous Manager? Is the OC happy with the current Manager, or is the OC unhappy with your current Manager?
Be pro-active rather than re-active.
If your OC functions better without the former Chairperson and the former Manager who is a family member of the Chairperson then don’t propose them and don’t vote for them.
You mentioned that your scheme is split into two camps. Some of the following suggested actions may work in your favour if the vote is close.
1. Put a Motion on the Agenda that pre- meeting electronic voting be permitted for voting at an AGM. No proxies will then be required and vendettas will not be as great an issue. NB: Voting for the election of office bearers must not be by this method due to the fact that nominations may come from the floor of the meeting.
2. Nominate other people to the Committee (other than the former Chairperson) and/or do not vote to support the former Chairperson if that person did become nominated.
3. Seek out an independent Manager and obtaining a quote for their services. Then propose a Motion to be decided at the next General Meeting to appoint the new independent Manager. In your Explanatory Material accompanying the Motion you might need to draw people’s attention to the possible conflict of interest that may arise from having two family member’s so closely entwined in positions at your scheme.
4. Ensure that everyone who votes is financial, including those who have given their proxy to the former Chairperson. You may request that the Chairperson announce the names of all those who are entitled to vote on the Motions. An owner is not permitted to vote if that owner was an unfinancial owner at the date notice of the meeting was given and did not pay the amounts owing before the meeting.
5. If you believe that your side has the majority in a poll then ask for a poll vote. The motion will then be decided according to the value of the votes cast for and against the motion. The value of a vote cast by a person entitled to vote in respect of a lot is equal to the unit entitlement of that lot.
ccgirl – Has a termite inspection and report been undertaken already?
If not the OC has a responsibility to investigate the issue and have a termite specialist report on the alleged problems. The inspection should occur in a timely way. The report should try to identify the termite’s entry point to the Lot.
It some cases the Lot owner exacerbates the termite problem by creating damp spots around the perimeter of their Lot e.g. HWS system overflows. The Lot owner would then need to share and bear some of the cost of the repairs.
Yes, the OC is fully responsible for the repair of the flooring if it is determined that the termites came from the common property and that the lot owner did not contribute to the problem themselves.
If the OC is responsible for the damage then the OC should seek a suitable repairer as soon as possible. The OC insurance may be able to cover the costs. Check the OC insurance policy.
The OC should also try and identify the location of the main termite nest and any sub nests, and try to eliminate them.
From experience, bait stations are a good way of doing this.
Below is a legal opinion from a Qld perspective:
“To prevent a claim by an owner that a termite infestation was caused by the body corporate’s failure to act, a body corporate should:
- take steps to prevent termite infestation by engaging a professional to report on any potential termite hazards;
- put into place a termite prevention system;
- if termites are found, the body corporate’s monitoring of the maintenance systems should be increased;
- make sure that if an owner finds termites in their lot, they should ensure the termites do not spread to the common property
- should allocate money in annual budgets and spend it on termite prevention or control;
- keep written records of the termite management programme
- keep the owners informed in reports made to them;
- advise owners of termite risks such as wood chips in garden beds, keeping garden beds away from external walls, removing old timber, cardboard or newspapers and avoiding accumulation of rubbish that may attract termites.”
https://belllegal.com.au/body-corporates-termite-infestations-takes-blame/
Hi JT – Could an interim order be sought by the OC if the Notice on the vehicle does not work?
Another avenue to try …. Is the vehicle still registered? Wouldn’t the Police or the NSW RTA have an address or contact details of the abandoned vehicle via their registration?
http://www.rms.nsw.gov.au/roads/registration/abandoned-vehicles.html
I found this extract on the Office of Fair Trading web site. I hope it helps.
Interest and discounts on levies
An unpaid levy attracts interest at the rate of 10% simple interest a year if not paid within one month of the due date. The owners corporation cannot increase or decrease the interest, but it can make a special resolution to charge no interest. Unpaid levies, including interest, can be recovered by the owners corporation as a debt in court.
An owners corporation may make a special resolution to give a 10% discount where a levy is paid before the day it is due. Payment made on the day it is due does not attract the discount.
A simple interest calculator which you can use to input your own numbers to determine whether your interest has been calculated correctly is linked below. Scroll down the linked page to find the calculator.
BONNIE L – You may get approval to remove a tree that is protected either by a TPO or LEP when there are problems with the roots blocking the plumbing or other pipes on the property or neighbouring properties.
danih – The neighbouring property is definitely responsible for the damage caused by the roots of their tree.
Are there any other large trees that are in the vicinity that could also be adding to your problem? Your neighbour will look to avoid the responsibility of the root damage as much as possible and will likely blame other trees – so be prepared.
To fully prepare for any future action you will need to obtain some more information ……
1. Ask the plumber to provide a written report about the damage caused to your pipes from the neighbouring tree.
2. Take photos of the tree.
3. Obtain a screen shot copy of a Google map satellite image of your property and its immediate surrounds which show the fig tree.
4. Obtain a quote (preferably two quotes) for the costs of all of the works involved e.g. trenching, replacement of the pipe, back filling and replacing the car park surface.
The steps to be taken after you have obtained those pieces of information are outlined in the link below:
https://www.matthewsfolbigg.com.au/news/local-government/trees-disputes-neighbours-nsw/
And in The Trees Act is linked here:
https://www.legislation.nsw.gov.au/inforce/def76566-c66f-4d9c-cc90-bf028ed0ca59/2006-126.pdf