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Tribunals usually frown upon Committees splitting bills merely to fit them within the Committee spending limits. This could be seen as being a ‘cheeky’ move by your Committee to avoid proper oversight by the OC.
The OC by-law needs to be correctly registered with the LPI and be entered on the Certificate of Title for the Common Property before it will become effective. It also needs to be passed by Special Resolution at the EGM.
In my opinion you would be bound by the old by-laws rather than the new if your renovations are passed at the upcoming General Meeting. There is, after all, no guarantee that the new Committee by-law will be approved by a special Resolution.
https://www.lpi.nsw.gov.au/about_lpi/strata_scheme_questions/new_bylaw_strata_scheme
I wouldn’t use the OC lawyer. You may need to go through the Tribunal to sort any difficulties out so, if I was you, I would seek independent advice. I would probably be seeking legal advice on this issue ASAP. Your renovations are extensive and expensive so to enable them to be achieved successfully in this environment of animosity it would probably be wise to seek legal advice sooner rather than later.
What state do you live in?
In QLD the BCCMA states that all three of the following elements must be satisfied for an Owner to be liable for the repair, therefore if only two elements are satisfied then the OC is responsible for the repair:
Utility infrastructure that:
- supplies a utility service to only one lot; and
- is within the boundaries of the lot; and
- is not within a boundary structure for the lot
In NSW it would appear from SSDA 2015 that the power point could be an Owner responsibility if it only benefits one lot and satisfies (b)(i -ii) and could be classified as being part of the wires and cables.
common infrastructure means:
(a) the cubic space occupied by a vertical structural member of a building, other than a wall, or
(b) the pipes, wires, cables or ducts that are not for the exclusive benefit of one lot and are:
(i) in a building in relation to which a plan for registration as a strata plan
(ii) otherwise—in a building or in a part of a parcel that is not a building, or
(c) the cubic space enclosed by a structure enclosing pipes, wires, cables or ducts referred to in paragraph (b).was lodged with the Registrar-General before 1 March 1986, orTo add to my previous comment … the OC has the power to seek an Order regarding rectification of damage to common property via SSMA 2015 [s132]. Why does your Strata Committee believe that it requires additional powers that are over and above those contained within the Act, and have they properly justified their position?
This may add further weight to your argument that the imposition of the financial penalty by the Strata Committee is harsh and oppressive.
https://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ssma2015242/s132.html
That is good news about the storm water pipe being removed from your Lot.
The other conditions are not good news. YES, I believe you should seek Mediation through the Office of Fair Trading as soon as possible and be prepared to take this matter to the Tribunal if necessary.
I also believe that the conditions being imposed upon your renovation are unreasonable and oppressive. These extra conditions appear to be almost vindictive …though vindictiveness would be difficult to prove.
There are also several issues where your OC may have breached the Act:
1. Authorisation to seek legal advice. Was it correctly obtained? Excluding an emergency situation, the SC generally cannot seek legal advice and use OC funds in this manner without obtaining consent via a Motion at a General Meeting. Was this consent obtained? See SSMA 2015 [s103(1)]
https://posh.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ssma2015242/s103.html
2. By-law changes. Was it correctly obtained and changed? By-law changes require a Motion to be put to a General Meeting and approved by the OC by Special Resolution. The SC does not have the authority to make changes to by-laws. See SSMA 2015 [s141(1)] https://posh.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ssma2015242/s141.html
3. Reasonableness of the by-law. Is the by-law reasonable? All by-laws must be reasonable. A by-law must not be harsh, unconscionable or oppressive.Clearly the by-law stating that work must be completed within 5 months is not reasonable. You have expert opinion to back you up.
4. Renovation bonds. Is it reasonable? Is the penalty too harsh? In my opinion the penalty is too harsh. The renovation bond should only be imposed on damage to common property. This requires proof of damage.
5. Authority of the SC to impose the penalty of $5000 per week. The Act does not permit the SC to directly impose such a financial penalty on an Owner. Any by-law breaches fines and penalties must be go through the Tribunal, and only after the proper Notice to Comply has been correctly issued. There appears to be few if any restraints within the by-law on the SC’s arbitrary and capricious authority regarding the imposition of the penalty.
6. Strata Committee’s authority. The Strata Committee must not make decisions that are not in accordance with the Act. The Committee does not have the power to make rules to bind owners. Only the OC has this power. To purport to delegate rule-making power to a committee is inconsistent with the Act and, quite probably, invalid.
In summary … I would get this matter sorted out prior to the renovations commencing. Hopefully Mediation will be speedy and successful.
Why not try both!
My two cents worth … and from experience …. after successfully getting a Material Change of Use development knocked back that adjoined my scheme in QLD due to all of our owners writing separate letters, sometimes the ‘thick file’ principle works.
It can be more effective if Council gets lots of individual letters of complaint rather than one letter, even though the one letter represents many individual owners. When the statistical ‘wonks’ get their hands on the letters it is often times the total numbers of letters that is often counted not the numbers of people represented in the letters.
If the Committee agrees by Resolution at a Committee Meeting, maybe the Committee may like to draw the Owners’ attention to these matters via the Committee Minutes and might like to include contact details for the relevant person on Council should the individual owners wish to follow up on this matter themselves. This approach should be deemed to be legal under the Act.
Are there any apartments currently on the market within the scheme that you are interested in? Prospective owners of apartments For Sale within a strata scheme are generally permitted to view the Strata Records as part of their pre purchase due diligence. Maybe this is an avenue worth exploring? Check with any seller’s Real Estate Agent first tho.
Minutes of Meetings are not government property. They belong to the Owners Corporation.
The only other option is to go to the Titles Office and search there. I agree with S and JT. Privacy should be a major concern. There are unscrupulous property developers too who would like to contact owners in the hope of redeveloping our buildings now that the Act has relaxed the rules. 🙁
You have a right to view the Strata Roll (as per Strata Schemes Management Act 2015 [s182]). The Committee’s contact details should be on the Strata Roll. You will able to find out who is on the Committee by viewing the previous AGM Minutes.
If you don’t live in Sydney (where your SM is located) then you can authorise someone else to view the Strata Roll on your behalf.
The fee to inspect the Strata Roll (as per Fees in the Strata Schemes Management Regulation 2016 -Schedule 4) is $31 and an additional $16 for each half-hour or part of half-hour after the first hour of inspection.
STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 182
Requests for inspection of records of owners corporation
182 REQUESTS FOR INSPECTION OF RECORDS OF OWNERS CORPORATION
(1) Persons who may inspect An owner, mortgagee or covenant chargee of a lot in a strata scheme, or a person authorised by the owner, mortgagee or covenant chargee, may request the owners corporation to allow an inspection to be carried out under this section.
(2) Form of request The request must be made by written notice given to the owners corporation and be accompanied by the fee prescribed by the regulations.
(3) Items to be made available for inspection The owners corporation must make the following items available for inspection by the person who makes the request or the person’s agent:
(a) the strata roll,
(b) any other records or documents required to be kept under this Part,
(c) the plans, specifications, certificates, diagrams and other documents required to be delivered to the owners corporation before its first annual general meeting by the original owner or the lessor of a leasehold strata scheme,
(d) if in its custody or under its control, the certificate of title comprising the common property or, in the case of a leasehold strata scheme, the certificate of title for the lease of the common property,
(e) any applicable 10-year capital works fund plan,
(f) the last financial statements prepared,
(g) every current policy of insurance taken out by the owners corporation and the receipt for the premium last paid for each such policy,
(h) if a strata managing agent has been appointed, a copy of the instrument of appointment,
(i) if a strata renewal plan has been given to owners for their consideration under Part 10 of the Strata Schemes Development Act 2015 , a copy of the plan,
(j) any other record or document in the custody or under the control of the owners corporation,
(k) if the duties of the owners corporation under this subsection have been delegated to a strata managing agent, any other records (including records of the strata managing agent) relating to the strata scheme that are prescribed by the regulations,
(l) if a building manager agreement is in force or has been entered into but has not yet commenced, a copy of the building manager agreement,
(m) particulars of any service agreement entered into by the owners corporation,
(n) particulars of any agreement entered into with a local council for a strata parking area,
(o) if the request is made within 5 years after the end of the initial period, particulars of any orders made under section 27 and copies of any related contracts or other documents.
Maximum penalty: 5 penalty units.
(4) Meeting inspections For the purpose of complying with requirements for the giving of notice of a meeting of the owners corporation, the original owner (whether or not having ceased to be anowner) or an agent authorised in writing by the original owner is entitled to inspect the strata rollwithout payment on making a written application.
SnOwl – My scheme has an Otis lift. In our latest Minutes we have decided to do this:
“It has been identified that as the lift emergency communication system is linked to the landline phone system, this will no longer work once the NBN is “switched on”. Otis has provided a quotation for the installation of a Cellular Gateway and sim card system as a solution. This will provide 2 hour talk time in the event of a power failure, from within the lift car.”
We have decided to seek another quote as a comparison, and will move forward from there.
To add to SH’s response here is a useful article from Hynes Legal regarding voting outside of a committee meeting, and where it is useful, and why it should not be used too frequently. It is a Qld opinion but should generally apply across all States.
https://hyneslegal.com.au/archived-news/voting-outside-committee-meetings-nar-234
Rule 32 of the Rules of Conduct for Real estate agents and Property managers states:
“32. Maintenance or repairs of rental property
An agent managing a rental property must promptly respond to and, subject to the principal’s instructions, attend to all requests by a tenant for maintenance of, or repairs to, the property.
If the principal has instructed that a repair not be carried out, the agent must inform the principal if the principal’s failure to carry out the repair would constitute a breach of any tenancy agreement in force in relation to the property.”
The RTA 2010 states at Section 70:
Locks and other security devices(1) A landlord must provide and maintain the locks or other security devices necessary to ensure that the residential premises are reasonably secure.
This section would include foyer locks, garage locks, door locks, window locks, storage cage locks and any other locks connected to the Lot such as letter box locks.
Even though the locks are technically the responsibility of the OC the obligation for their repair under the RTA lies with the landlord i.e. the Owner.
Section 62 defines “residential premises” as “everything provided with the premises (whether under the residential tenancy agreement or not) for use by the tenant.”
A letter box is used by the Tenant.
Section 62 defines “urgent repairs“ as “any work needed to repair any one or more of the following:
(k) any fault or damage that causes the residential premises to be unsafe or insecure”
Section 64 Urgent repairs to residential premises states:(1) A landlord must, not later than 14 days after being given a written notice from the tenant, reimburse the tenant for the reasonable costs of making urgent repairs to the residential premises.
(2) A landlord is required to reimburse the costs only if:
(a) the state of disrepair did not result from a breach of the residential tenancy agreement by the tenant, and
(b) the tenant gave the landlord or the landlord’s agent notice of the state of disrepair or made a reasonable attempt to do so, and
(c) the tenant gave the landlord or landlord’s agent a reasonable opportunity to make the repairs, if notice was given, and
(d) the tenant has made a reasonable attempt to arrange for a licensed or otherwise properly qualified person nominated in the residential tenancy agreement to carry out the repairs, if such a person is so nominated, and
(e) the repairs were carried out, if appropriate, by licensed or otherwise properly qualified persons, and
(f) as soon as practicable after the repairs were carried out, the tenant gave the landlord or landlord’s agent, or made a reasonable attempt to give the landlord or landlord’s agent, a written notice setting out details of the repairs and the costs of the repairs, together with the receipts or copies of receipts for costs paid by the tenant.
(3) The maximum amount that a tenant is entitled to be reimbursed under this section is $1,000 or such other amount as may be prescribed by the regulations.
(4) Nothing in this section prevents a tenant, with the consent of the landlord, from making repairs to the residential premises and being reimbursed for the costs of those repairs.
(5) This section is a term of every residential tenancy agreement.
It is for these reasons that the Tenant should have the authority to undertake the repair of the letterbox lock and go through the Agent rather than the Strata Manager to seek compensation.
Question – A Tenancy advocacy group may also be able to assist you.
https://tenants.org.au/?gclid=EAIaIQobChMIgMTD4JGL1gIVzQYqCh09qgbaEAAYAiAAEgJlCPD_BwE
I needed an urgent repair of a lock on my front door on one Sunday afternoon earlier this year. Front door and lock are common property. I called the locksmith who arrived and undertook the repair immediately. I paid for the repair then sought compensation for the repair. I had no problems getting compensated for the repairs by the OC even though all the repairs were to common property.
Question – You don’t need to know who the owner is to send them a repair Bill if the repair is deemed to be urgent. You just need to send the Bill to the Agent who will forward it to the owner. The owner must pay you within 14 days.
It is a tricky situation but if you want the lock fixed quickly then this may be what you need to do. Let the Owner sort the matter out with the Strata Manager and the Owners Corporation. This will avoid you having to deal with the Strata Manager.
If you have had a credit card stolen from your letterbox then the person who stole it knows that you will be issued another one soon. If your letterbox remains unlocked and unsecured then all they have to do, sadly, is come by and steal the new one when it arrives.
Being that you have had your credit card stolen as a result of the faulty lock on your common property letter box and you have notified your Agent but have not received any response then you might consider having the letter box lock repaired at your expense and then forwarding the Bill to the Owner via the Agent.
The Owner has let the property with a letter box therefore the letter box should be secure and functional. The owner is obliged to pay you within 14 days.
The Owner can then take this matter to the Strata Manager and the Owner’s Corporation to claim their money back. It could possibly be a small amount of money to have a locksmith fix the lock.
The fact that the security of your property has been put at risk may categorise the issue as an Urgent Repair.
Take photos before and after and ensure that you have kept all of the correspondence, records of phone calls etc.
The following is an extract from https://tenants.org.au/factsheet-06-repairs-and-maintenance
“Urgent repairs
Urgent repairs means any work needed to repair any of the following:
- a failure or breakdown of the gas, electricity or water supply
- a failure or breakdown of any essential service for hot water, cooking, heating, cooling or laundering
- any fault or damage that makes the premises unsafe or insecure
- serious damage from a natural disaster.
Getting urgent repairs done
Tell the landlord/agent – in writing if possible – about what needs fixing. Follow up any conversations with a letter. Keep a copy of the letter and a record of any conversations as evidence that you told the landlord/agent.
If there is no electricity or water it may be up to the service provider to fix the problem (if it is outside the boundary of the premises). See also Factsheet 23: Utilities.
If the landlord/agent cannot be contacted or is unwilling to do the urgent repairs, you can arrange for them to be done.
If the landlord/agent cannot be contacted or is unwilling to do any urgent repairs, or if they are taking too long to do them, you can arrange for the repairs to be done. Do not pay any more than $1,000 or you may not get your money back – the landlord is only required to pay you for any reasonable costs up to $1,000. They are obliged to pay within 14 days of your notice.
You must be able to show that:
- the problem was not your fault
- you made a ‘reasonable’ attempt to contact the landlord/agent
- you gave the landlord/agent a ‘reasonable’ chance to do the repairs
- the repairs were carried out by a repair person named in your tenancy agreement (if possible) or by a licensed or qualified tradesperson.
You must give the landlord/agent written notice about the repairs, costs and copies of receipts. The landlord must pay you for any reasonable costs up to $1,000 within 14 days of your notice.
If the landlord does not pay, apply to the Tribunal within 3 months from the end of that 14 days for an order that they do so.
If you cannot afford to pay for urgent repairs, apply to the Tribunal for an urgent hearing for the repairs to be done. You can also apply for a rent reduction until the repairs are done. See ‘Applying to the Tribunal’ below.”
A sample form letter is here: