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mushroom – There may be additional issues that are impacting the emergency phones in the lift, such as how the NBN service is impacting your building. The NBN System employs IP technology which is not compatible with the current lift phone systems. Your Committee and then your OC may need to look at alternatives to the Telstra emergency lift phone line.
See here: https://www.nbnco.com.au/learn-about-the-nbn/device-compatibility/lift-emergency-phone.html
In addition I would advise you and your Committee to check the Strata Manager’s Contract. What does the Contract say about the responsibilities of the Strata Manager v the responsibilities of the Committee?
Your Strata Manager may be breaching their contract by not dealing with this administrative matter expeditiously, particularly as safety is clearly involved.
What does the Contract say about the process of how to deal with Strata Manager Breaches of Contract? Does the Contract state that the Committee and/or the Secretary is required to send a ‘reminder and/or warning’ letter to the Strata Manager about the Breach?
See below for information about Strata Managers:
From the OFT web site the Secretary usually has the authority to undertake the following roles:
Powers and duties of the Secretary
The powers and duties of the Secretary of an owners corporation include:
- preparing and giving minutes of meetings and putting a motion to confirm the previous minutes
- giving notices for the owners corporation and its strata committee
- keeping the strata roll
- giving information to a person for the owners corporation under section 184
- answering correspondence addressed to the owners corporation
- convening meetings of the owners corporation and its strata committee (apart from its first AGM)
- doing all administrative and secretarial duties for the owners corporation and the strata committee.
If termination of the Strata Manager for poor performance is being considered then the OC can look to section 72 of the Act. The NSW Civil and Administrative Tribunal has powers to make orders in relation to agency agreements, including the termination of an agency agreement.
Winston – You stated that the Agenda Motion includes the following:
“That the Owners Corporation review and accept one of the quotations received to carry out the necessary balcony works to all balconies on accordance with XXX Consulting’s amended report (attached)”.
I note particularly the word “necessary”. The sun shades would not be deemed to be necessary. Only the repair and maintenance of the actual balconies would be deemed to be “necessary”.
Incidentally, it is unclear from the Motion whether all balconies will need work or only those balconies that have been identified in the Consultant’s report. You may need to get this clarified at the meeting or in the amendment.
You are totally within your rights to raise the issue that either the wording of the Motion be changed (i.e. the Motion is amended) or that the Motion be ruled Out of Order.
From the OFT web site is this:
“Motions on the agenda may be amended at the meeting, except for:
- the subject matter of the motion
- motions determined wholly by pre-meeting electronic voting.
A person who may vote at the meeting may ask for a motion to be amended.”
In my opinion the Motion could be amended in the following way:
“That the Owners Corporation review and accept one of the quotations received to carry out the necessary balcony works to
allthe identified balconies in accordance with XXX Consulting’s amended report (attached) and that the shades/screens are to be removed from the scope of works of the accepted quotation as these items are a SSMA 2015 [s108] “improvement”.NB: The subject matter of the Motion has not changed.
You will need to raise a Motion at the AGM to amend the existing Motion. A Motion to amend a Motion is the only time that Notice is not required at a General Meeting. (See SSMA 2015 [Schedule 1 Section 18]. With the support of the other disgruntled owners you should be able to have the Motion amended.
If not amended then the Motion should be ruled Out of Order. Schedule 1 Section 19 states:
Chairperson may rule certain motions out of order
The chairperson at a meeting may rule a motion out of order if:
(a) the chairperson considers that the motion, if carried, would conflict with this Act or the by-laws of the strata scheme or would otherwise be unlawful or unenforceable, or
(b) any requirement of this Act to include the form of the motion in the notice of the meeting has not been complied with.
The inclusion of the sunshades in the quotes Motion is unlawful as sunshades are not a SSMA 2015
andrepair.Sunshades are a
improvement. As such a separate Special Resolution Motion should be passed that authorizes either (1) the owner’s corporation to make the improvement or (2) authorizes the owner to make the improvement and subsequently the owner makes a by-law providing for maintenance of the owner’s sun shades and the common property to which it is affixed.Make it clear that unless the Motion is changed or ruled Out of Order that you and others will immediately seek an NCAT Interim Order to prevent any of the works from being carried out, or you will seek Mediation and Adjudication through NCAT.
Make sure that only those who are Financial (i.e. have no strata debt) are permitted to vote.
Can you get yourself elected to the Committee and remove those who are not fulfilling their responsibilities satisfactorily?
In my opinion your assessment is correct. Perhaps the Secretary already knows this …. and wants to do something a bit ‘cheeky’ hoping that no one will notice!
The Motion should be ruled Out of Order unless the second part of the Motion (i.e. the sun screens) is removed.
The Motion contains 2 separate issues and therefore should be separated into 2 Motions.
One Motion should deal with the Maintenance and Repair of the balustrade. The second Motion should deal with the Improvements to the Common property (with voting by Special Resolution).
If the Special Resolution fails then the Owners who wish to install sun screens can always submit individual Motions and By-laws to cover the improvements to common property, and pay for this improvement themselves.
Something to consider when approving the sun shades is whether the sun shades will offend the the architect’s original vision of the development. See here: https://www.lookupstrata.com.au/nsw-sun-shades-for-apartment-balconies/
Ziggy – When you submit the By-law Motion I would recommend that you also include the following information in your accompanying correspondence:
(1) That you are well aware that there is no requirement under the Act that a lawyer must create all By-laws for the Scheme. Nor is there a requirement under the Act that a particular lawyer must create all By-laws for the Scheme. For the SM or the SC to allege that these matters are a requirement under the Act is clearly false.
(2) That any subsequent check by a lawyer of the By-law is to be at the expense of the Owner’s Corporation being that there are no provisions under the Act to pass this financial burden on to you, the submitter of the By-law Motion.
(3) That it is not the responsibility of the Strata Manager or the Strata Committee to approve By-laws. The responsibility to approve By-laws rests with the members of the Owner’s Corporation at a General Meeting.
(4) That you expect that your By-law Motion will be included within the Agenda of the next General Meeting as per the Act, and that the Motion is to be voted on by the members of the Owner’s Corporation, and if approved is Registered as per the Act.
(5) That if the Strata Manager or the Strata Committee for the Owner’s Corporation continues to frustrate your attempts to have an awning erected that you will have no other choice but to take this matter to Mediation and/or to NCAT, particularly in view of the existing precedents i.e. the fact that an awning has previously been erected at your Lot, and that other Owners have been permitted to erected an awning.
(6) That the Strata Manager is to acknowledge in writing the receipt of your letter and your By-law Motion.
NB: At the next available opportunity I would seek to have your SM’s contract not be renewed. Based on the information that you have provided he/she is clearly not fulfilling their job in a satisfactory or competent manner.
Ziggy – As Scotlandx has suggested, if I was you I would be asking for a copy of the By-laws just to check whether anyone has ever previously had a By-law for their awning approved by the OC, and then Registered.
Your SM cannot refuse to deal with you. If they do then they are in breach of their Contract.
If there is no By-law then you can write your own By-law. I am not a lawyer so any suggestions as to the wording of a By-law that I may make are not to be relied upon.
My suggestion is this:
Awning By-law for Lot xxxxx
As a condition of the Owners Corporation of Strata Scheme xxxxxxx approving the installation of an awning affixed to the Common Property fascia located at Lot xxxx, the Owner of Lot xxxx agrees to the following:
(a) the size of the awning will be xxxxcm Wide and xxxxcm Long; and
(b) the awning will be constructed of xxxxxxxxx and the colour will be xxxxxxx; and
(c) all work will be carried out by suitably qualified and licensed tradespeople; and
(d) the Owner will be responsible for the cost of the awning and its installation and all ongoing cleaning and maintenance of the awning; and
(e) the Owner will be responsible for any damage to Common Property that may result from the installation and the use of the awning, and any consequences of any damage the awning may cause to other property.
Ziggy – You mentioned that an awning had existed prior to your recent application, therefore I am assuming that a by-law for the previous awning also exists. Precedent exists for your awning. This is always a good thing!
Can you search the Strata records (or ask the SM) for a copy of the by-law that previously existed for this works? Perhaps, with some minor adjustments to suit your specific application, you could re-use the previous by-law.
You do not need a lawyer to write a by-law for you, nor should the OC or SM mandate that this is required. Such a requirement could be deemed to be “unreasonable”.
That being said, there are certain issues with awnings that need to be considered when drafting a by-law for awnings and blinds.
Sorry – I initially made a typo…By-law changes are not retrospective. I have corrected the typo.
If your Real Estate Agent and/or Owner of your Lot did not obtain approval then I would request that they send a letter IMMEDIATELY to the OC seeking approval. Ask that the Real Estate Agent and/or the Owner base the approval on the information that you have provided in your initial comment. Clearly state that the owner has provided approval.
By-law changes are a two step process. Step (1) OC votes to change the By-law at a General Meeting. Step (2) The new or changed By-laws are Registered.
The important date is the date of Registration.
By-laws do not become legally enforceable until they are Registered with the Registrar General, NSW Land Registry Services. Until that date the previous By-laws apply.
The OC must act reasonably. Therefore, your OC cannot reasonably deny your ability to keep a pet before the date that the anti pet By-law is Registered.
Get your letter in ASAP.
My advice to you is even if you receive a letter from the OC do not get rid of your dog. Do absolutely nothing!
The By-laws, even if they were to be changed at the upcoming General Meeting, do not come into effect until they are registered.
You have begun your Tenancy under the existing By-laws therefore any new By-law and subsequent Registration of this By-law will not impact you. By law changes are NOT retrospective.
You may like to Google “Can a body corporate be allergic to pets?” for a Qld legal perspective (Hynes Legal) on pet ownership in strata. Though not directly applicable to NSW, it makes for interesting reading,.
lefty – Unfortunately you are not in a strong position. Under the circumstances that you have described you cannot own your own view. You can own your own light … but not your view.
Clearly the open BBQ lid is not preventing light from entering your Lot.
Your neighbour has a right to enjoy his/her property too. Perhaps he/she had a valid reason for leaving the lid of the BBQ open …they may have forgotten to close it!
The best idea is to talk to your neighbour.
You may need to consider that if you anger your neighbour then you may find that the neighbour’s plants suddenly ‘reappear’ on their balcony in even greater abundance, in addition to the BBQ.
In general, if the neighbour’s balcony forms part of their Lot, or part of their Exclusive Use area, then the ‘box’ of air space within the boundary of the balcony (including the vertical space from the floor of the balcony up to the base of the floor above) also forms part of the Lot.
As such, the owner and/or occupant of the Lot with the balcony can pretty much fill that ‘box’ of air space with whatever they wish to fill it with.
The only caveat is that the objects placed within the ‘box’ of air space must not offend any existing by-laws such as ‘BBQs’ (as JT has mentioned) and/or ‘Appearance of a Lot’.
If BBQs are permitted then your best bet would be to ask that the neighbour move the BBQ to another part of their balcony. Maybe offer them an inducement, such as a bottle of wine! I don’t believe that you would achieve much by taking this matter to OFT.
Yes. In my opinion all that is required is that your OC has reviewed the by-laws. If the existing by-laws are satisfactory and are not unreasonable then your OC does not need to change them. Have this review Minuted and all should be OK.
The SSMA 2015 legislation is stated below. Note the use of the phrase “name of each candidate”. In my opinion an initial is not a legal name.
Section 10 Ballot for strata committee(1) This clause applies to the election of a strata committee for a strata scheme comprising more than 2 lots.
(2) If a ballot for membership of the strata committee of an owners corporation is required, the person presiding at the meeting of the owners corporation must:
(a) announce to the meeting the name of each candidate, and
(b) provide each person present and entitled to vote at the meeting with a blank ballot paper for each vote the person is entitled to cast.
(3) For a vote to be valid, a ballot paper must be signed by the voter and completed by the voter’s writing on it:
(a) the names of the candidates (without repeating a name) for whom the voter desires to vote, the number of names written being no more than the number determined by the owners corporation as the number of members of the strata committee, and
(b) the capacity in which the voter is exercising a right to vote, whether:
(i) as owner, first mortgagee or covenant chargee of a lot (identifying the lot), or
(ii) as a company nominee, or
(iii) by proxy, and
(c) if the vote is being cast by proxy—the name and capacity of the person who gave the proxy.
(4) The completed ballot paper must be returned to the chairperson.
(5) Until all places for membership of the strata committee have been filled, the chairperson is to declare elected successively each candidate who has a greater number of votes than all other candidates who have not been elected.
(6) If only one place remains to be filled but there are 2 or more eligible candidates with an equal number of votes, the candidate to fill the place is to be decided by a show of hands of those present and entitled to vote.
(7) Subclause (6) is subject to a resolution referred to in clause 14 (1) (a).
Do you have a Strata Manager or is your scheme self managed?
In my opinion if you are on the Committee you can raise a Motion at the Committee Meeting as this problem does not really require an OC meeting to resolve it. You could also have it noted for the record that no decisions are to be made on any matter by any committee member without the authority of the committee.
If you are not on the Committee and are not confident that the Committee would Pass your Motion then you can raise a Motion and submit it to the Strata Manager and/or Committee for inclusion at the next General Meeting.
You may find that the Treasurer recognises his/her error and submits his/her own Motion in an endeavour to seek to have the reimbursement retrospectively approved.
The person who organised the unauthorised meeting may still get to retain the cost of the meeting if this problem is corrected by either a Committee vote or an OC vote.
The amount of money reimbursed to the Committee member (who held the unauthorised meeting), by the Treasurer, falls within the limit that the Committee is permitted to approve.
“If legal services:
- will not cost more than $3,000, or
- are urgent and will not cost more than $15,000, or
- relate to obtaining legal advice before taking legal action, or
- concern the collection of overdue levies,
the strata committee is able to approve those legal services: see section 103 Strata Schemes Management Act 2015 and cl 26 Strata Schemes Management Regulation 2016.”
(https://www.lookupstrata.com.au/new-rules-legal-services-nsw/)
The next question is: Did the Committee approve the reimbursement of the money via a Motion at a Committee Meeting, or did the Treasurer approve the re-reimbursement without seeking approval at a Committee meeting?
If the Committee approved the reimbursement then the member who was to benefit from the reimbursement should not have voted on the Motion, as they have a direct Pecuniary interest in the outcome. Schedule 2 – Section 18
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ssma2015242/sch2.html
Check to see whether the Treasurer has been delegated the function of spending money by the OC. If he/she hasn’t been delegated this function then the Committee should retain this function – minus the voting input from the member with the pecuniary interest (as mentioned above).
Depending upon the number of people on the Committee who are attending the Committee meeting, if you vote NO and the member with the pecuniary interest is not permitted to vote then this may cause the Motion to fail.
Only the Committee or the OC are permitted to authorise the spending of money, unless this function has been delegated to a Committee member or a Strata Management Agent under SSMA 2015 [s13(1)(d)].
annmb – The answer to your question depends upon where the fence is located. The following information may assist you: