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I would have thought that a by-law should have been written to cover the OC’s authority and responsibility for the OC CCTV. Guide lines would not be sufficient.
The CCTV footage is an OC record. As such it can be viewed by OC members – including committee members and other owners.
In the by-law – Safe guards should be built into the viewing such as: only the Committee and Law enforcement officers should be authorised to access the footage; with justification an Owner can apply to the Committee to access the footage and must view it in the presence of two committee members and the Committee cannot unreasonable deny such a request; signage should be displayed indicating that CCTV is operating in that area; the footage can only be viewed as a result of a ‘by-law breach incident’ or to prevent a future ‘by-law breach incident’; Committee approval must be obtained via a Committee motion before any viewings of the CCTV footage (this can obtained via a Motion Outside of a Committee Meeting if necessary); a minimum of two committee members must be present when the tape is viewed; and, a ledger must be signed and dated by all those who viewed the tape and a reason given as to the need to view the tape.
There are probably other restrictions that could be imposed, but the above suggestions might be a good starting point.
If you are in NSW the following may help:
http://www.smartsafe.org.au/sites/default/files/ReCharge-Legal-Guide-NSW-Surveillance_0.pdf
To add to JT’s comment the number of swipe cards per Lot should be based on the number of bedrooms, with 2 cards allocated for each bedroom e.g. 3BRM = 6 swipe cards.
For a tenancy the landlord/agent must give each tenant named in the tenancy agreement a free copy of the keys and/or swipe card for the premises.
Whoopi – Who made the decision about the fee increase?
Was this fee increase for the swipe card voted on at an AGM?
What was the reason for it: admin cost etc???
I agree with JT. Try the OC avenue first.
There are a few things to consider when determining if flooring is common property.
If there is no special by-law regarding the flooring then Floating flooring can be a ‘grey’ area and can depend upon how it is affixed to the slab e.g. has it been screwed or glued to the slab, or not affixed to the slab at all?
The OC may argue that if the flooring is not affixed to the slab and has no special by-law regarding who is responsible for it then perhaps it may be considered not to be common property …. in a similar way that carpet is not considered common property.
If I was on the Committee of your scheme and the issues are urgent (which clearly some of them are!) rather than wait for several months for the OFT to resolve these issues, I would want the Committee to take over the responsibility for completing all of the outstanding issues e.g. installing window locks etc.
Your SM is clearly incompetent and does not deserve to be employed by your OC.
If you are using a solicitor for the sale of your Lot then check with them. You don’t want any future contract to ‘fall over’ due to an oversight in completing the sale contract details.
You may need to disclose the existence of the mediation issue as it is a matter that affects the property and could result in significant cost and inconvenience to the purchaser. This type of issue is not easily discoverable during the purchaser’s due diligence process.
The purchaser may be able to rescind the contract if the mediation was not disclosed by you, the seller. The purchaser could argue that they would not have entered into the contract had they had prior knowledge of the mediation.
Is your building brick, timber, or stucco?
Can the a/c condensate be plumbed into the Lot’s internal kitchen or bathroom plumbing?
If not, the external drainage pipes could be painted a similar colour to the wall colour and thereby be ‘camouflaged’.
The main issue is whether the comfort of the occupants is more important than the slight change that the piping will make to the aesthetics of your building.
The sick, the elderly and the young are often those who benefit most from the a/c. Is your Committee being unreasonable in denying the occupants of your building a level of comfort that benefits their health and well being?
An occupant probably spends less than 2 minutes a day looking back at their building from the street and pondering the piping …. but the same occupant can spend 24 hours within their apartment either wishing they had a/c or being grateful that they have a/c.
Does 2 mins trump 24 hrs?
Ziggy – The SSMA 2015 only allows for Owners Corporations (i.e. not an individual owner) to enter into a dispute with a Strata Manager via the Act’s dispute resolution process.
However, there may be another avenue for you to lodge a complaint about the SM’s ‘conduct’ issues. Below is an extract from the Office of Fair Trading site:
“The conduct of strata managing agents is governed by the Property, Stock and Business Agents Act 2002, which Fair Trading regulates.
You can lodge a complaint about matters concerning the conduct of an agent on the Fair Trading website.”
You can enter the site via the embedded link.
The code of conduct for the SM is contained within Division 6 of the PSBA 2002:
Division 6 Unjust conduct by licensees
53A Interpretation
(1) For the purposes of this Division, conduct of a licensee is unjust if it is
conduct:
(a) that is dishonest or unfair, or
(b) that consists of anything done, or omitted to be done, in breach of
contract, whether or not proceedings in respect of the breach have
been brought, or
(c) that consists of the contravention of this Act or the regulations or
any other enactment administered by the Minister, or
(d) that consists of the failure to comply with a condition or
restriction to which the licence is subject or an order of the
Tribunal applicable to the holder.Ziggy – A non-owner can attend a meeting if they have sought and obtained permission to do so, and may exercise a proxy under certain circumstances.
Tenants are permitted to attend meetings under certain circumstances, and to exercise a proxy vote under certain circumstances.
A support person can attend a general meeting with an owner unless the owners corporation passes a motion to restrict the meeting to lot owners, their proxies, and those who are otherwise entitled to vote (such as mortgagees or covenant chargees or company nominees) only.
Whether the support person is permitted to speak at the meeting is a matter for those at the meeting. A support person must be invited to speak. A support person’s right to speak is not automatic.
A support person is different from a proxy. A proxy is permitted to speak at a meeting. A proxy has the same rights as the owner who has granted the proxy.
If an owner is uncomfortable speaking at a meeting and yet wants their opinion heard at a meeting then it would be best to appoint a proxy who would act on their behalf at the meeting. The owner would not then not be permitted to speak (unless invited to do so) or vote at the meeting as they have given their right to speak and vote to their proxy.
Non owners may be asked to leave the meeting for short periods of time when sensitive subject matter is discussed, including financial subject matter.
Larry – From my understanding of the Act, the Secretary calling for a meeting to be held by phone, is not valid under the circumstances that you have described. From your description of the circumstances, any such meeting would be Out of Order (see below at(4)).
In answer to your other queries:
(1) A detailed Agenda for the Committee Meeting must be provided by the Secretary but this does not mean that all Motions must be determined before hand. If actual attendance at the meeting is required then an Agenda may include Motions but legislation does not require it to contain Motions.
(2) If, however, a Motion was proposed by a Committee member and Seconded by another member prior to Notice being given of the meeting by the Secretary then the Secretary must include the Motion on the Agenda.
(3) It is the Secretary’s role to call a meeting. However, Committee Meetings can also be called when over one third of the committee members submit a request in writing to the Secretary that they would like a Committee Meeting to be held.
(4) There are various ways that committee meetings can be held – by attending in person, or by phone, or by written approval of Motions with no actual attendance required etc. However, all other methods, apart from meeting in person, must be approved by the Committee. The Secretary does not have the authority to make a decision to hold a Committee Meeting by phone. The unauthorised phone meeting would be breaching the Act and can be ruled Out of Order. If a majority of the Committee only wants to hold ‘in person’ meetings then that is the only way that a Committee Meeting can be held.
(5) When no attendance is required at a Meeting then all Motions need to be submitted for inclusion on the Agenda prior to the meeting. These types of meetings require that valid notice must be given to each member (with the required motions) and the majority of members must approve the motion(s) in writing to the secretary (by way of a voting paper).
(6) Proxies can be used at Committee meetings. To prevent your majority being lost by a member not being able to be present at a meeting, a Committee member may act as a proxy for another committee member who is unable to attend the meeting. The proxy giver would need to notify the Secretary in writing prior to the meeting that they have given their proxy to another member. The proxy recipient would, of course, need to agree.
(7) After opening the meeting, the Chairperson would note the Apology of the absent member and would state the name of the member Present who has the proxy for the absent member. Proxies should be recorded in the Minutes.
(8) You, as Chairperson, can rule a Motion out of Order if it conflicts with the Act or the by-laws, or is unlawful or unenforceable. This may be useful if the ‘ulterior motives’ that you refer to are unlawful.
(9) How was the Secretary appointed to the position of Secretary? Was this decision made by the Owner’s Corporation at the AGM or was it this decision made by the Committee? In NSW, once the strata committee is elected, it is usual for the members of the committee to decide who is to hold the officer positions of Chairman, Secretary & Treasurer.
(10) If your committee is unhappy with the current Secretary then the officer position of Secretary can be ‘unmade’ in the same way that it was ‘made’ i.e. by majority vote of the Committee members. Another Secretary can then be appointed by majority vote of the Committee members. NB: The Committee member’s names are not changing – the only change is the designated officer roles within the Committee.
(11) Committee Motions can be vetoed by the owners. There are two opportunities for this to arise. (a) From Motions yet to be resolved, as reflected on the Meeting Agenda, and (b) From Motions that have already been resolved, as reflected in the Minutes. In both situations the Motion must not proceed where the secretary has received a notice opposing a motion (in writing) from owners who represent more than one third of the aggregate unit entitlements for the strata scheme.
NB: This is why it is necessary for the Minutes of the Meeting, including all resolutions made, to be made available to all Owners within 7 days of the Meeting being held. It enables the owners to object to Committee decisions should more than one third of them wish to do so.
A detailed guide to serving on the Strata Committee is here:
https://www.netstrata.com.au/wp-content/uploads/2017-A-Guide-to-serving-on-a-Strata-Committee.pdf
Mr Strata – Your scheme’s by-laws are slightly different (and slightly more strict) than the Model By-laws that I mentioned in an earlier comment, but the intent is still the same and the outcome is still the same with regard to child safety.
In your scheme the Committee may have needed to have provided written approval for Nettie’s safety netting prior to installation (whereas the Model By-laws do not) however the Committee cannot refuse a request for such an installation. This is due to the fact that it is a child safety device. Approval is automatic as per By-law 7(3)(c).
Your by-law states:
7(3) This by-law does not prevent an owner or person authorised by an owner from installing:
(a) any locking or other safety device for protection of the owner’s lot against intruders, or
(b) any screen or other device to prevent entry of animals or insects on the lot, or
(c) any structure or device to prevent harm to children.
The Committee’s attempt to force Nettie to remove the child safety netting through the use of the second part of By-law 7(4):
Any such locking or safety device, screen, other device or structure must be installed in a competent and proper manner and must have an appearance, after it has been installed, in keeping with the appearance of the rest of the building.
is further weakened by the new Act’s restriction on by-laws.
Section 139 (1) states:
“By-laws cannot be unjust. A by-law must not be harsh, unconscionable or oppressive.”
The child safety campaign “Kids Don’t Fly” has drawn attention to the number of fatalities and serious injuries suffered by children from falls from buildings. Child safety is an issue that must be top of mind. Is a by-law harsh, unconscionable, and oppressive if it is used to over ride the installation of a safety device that is temporary and barely visible? My answer would be YES.
Australia has a hot climate where children are encouraged to be outdoors, and children are encouraged to exercise and play. Often the only outdoor experiences children have in on a balcony. Owners purchase a Lot so that they and the occupants can use ALL parts of their Lot (including the balcony), and not be restricted from using portions of their Lot.
BCA balcony heights are 1m, however that is a minimum height rather than a maximum height. Internal windows must have window locks on windows up to 1.7m from the floor level. There is a 70 cm difference between what is acceptable for a ‘safe’ window and what is minimum for a ‘safe’ balcony. Clearly there is a discrepancy between the two heights regarding child safety. Without raising all balcony railings by 70 cm isn’t it more feasible to allow an occupant to temporarily install safety netting?
What does the phrase “in keeping with the appearance of the rest of the building” mean?
In Dupont v Hughes (Strata & Community Schemes) [2003] NSWCTTT 786 (8 December 2003)
where the colour of the permanently installed steel security grilles of a Lot was changed from brown to cream, the Adjudicator determined that this change did not offend the by-law regarding the appearance of the building.Being that the Dupont v Hughes decision was a 2003 decision, and the 2015 Act has introduced [s139(1)], it is even less likely that Nettie’s minor and temporary change would trigger a breach of the ‘appearance’ by-law.
Mr Strata – Mediation works in situations where one party feels threatened by, or is made to feel uncomfortable by, the other party. Mediation is a totally legitimate and acceptable form of conflict resolution. It is unfortunately the more aggressive party that usually incorrectly perceives themselves to be ‘neutral’ or benign.
Temporary means not permanent e.g. the netting can be removed after a short number of years.
Permanent means that the netting would remain for the life of the building. Clearly, the netting would be deemed to be temporary. Nettie has provided an assurance to the Committee that the netting will removed when it is no longer needed.
Read Nettie’s comment to see how the netting has been attached. Nettie has employed a contractor who was recommended by the company supplying the product. She has provided the installation procedure to the Committee.
The Council may have responded to a complaint from a resident of the building who assumed, clearly incorrectly, that the netting was ‘bird netting’. Perhaps it was a Committee member who complained to Council? Council does not act unless prompted to do so. Council does not usually reveal complainants identities either. It is highly unlikely that a Council employee happened upon the safety netting by pure chance.
That’s all from me.
Good luck Nettie. Keep us posted on your progress and the outcome.
I agree with JT that you may be best trying CJC first. You may get a quicker result.
NCAT fees are below. From my quick look it appears that the fee would be $101 unless you are entitled to a discount.
http://www.ncat.nsw.gov.au/Pages/apply_to_ncat/fees_and_charges/fees_and_charges.aspx
Being that your case is a ‘novel’ case i.e. an issue that has no precedent as yet, it may be worth your while seeking expert advice. You would probably be very cross with yourself if you lost your case over some small issue that you may have inadvertently overlooked.
If you lose your dispute then your safety netting may need to be removed …. a outlay cost that you would have ‘wasted’. And your children’s safety would again be at risk… and you can’t put a price on that!
Its your decision but if it was me, I would opt for legal advice. Give yourself the best possible chance of winning.
Dr Sherry’s advice is very good advice!
Lady P said:
And here is another way (which is not free): via the Office of Fair Trading
https://www.service.nsw.gov.au/transaction/apply-strata-mediation
Actually, at some point in the past year or so, they dropped the fees completely … but then, if you’re in Sydney, you have to go to Parramatta.
Totally agree, JT. This will make for an interesting ‘test’ case.
Regarding the appearance of the building v child safety …. I guess the issue is whether if “Strata owners are legally entitled to prioritise building aesthetics and property values over children’s lives.” is it reasonable to do so?
We also have the dilemma of whether by-laws are “harsh, unconscionable or oppressive” if they fail to prioritise child safety?
See this article by Dr Sherry: https://www.smh.com.au/opinion/head-20160102-gly5r3.html