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I am guessing that if you are wanting to contact the Strata Manager that you have issues with the common property rather than issues within your rental property.
If that is the case then why don’t you draft the email about the repairs and sent it to the Agent. Include the name and email address of the Strata Manager. Ask your Agent to forward it on to the Strata Manager immediately and ask that the Agent CC you into the email conversation? That way you will know that the email has been sent by the Agent to the Strata Manager.
If you are doing all of the ‘hard work’ for the Agent then there is no excuse for them not to act.
Genna – Until the previous Motion about the white paint is overturned and changed by a vote at a General meeting then the previous motion stands. The Windows should be painted white.
In my opinion, if the strata manager has made a mistake with the paint colour then the strata manager should bear the cost of the mistake. The strata manager would probably have insurance to cover mistakes such as this. The strata manger appears to be trying to bluff the owners into capitulating so that they can avoid facing up to their responsibilities.
Changing the appearance of common property requires a Special Resolution (i.e. 75% of the vote). As I see it … if the OC had originally agreed to white paint and the paint used was green, then to change the colour from green to white would require 3 out of the 4 owners to vote for the green paint in a Motion at a General Meeting.
Can you raise a Motion at the next General Meeting that states “that Committee Meetings of the Owners Corporation are to be held 4 times a year, and are to be held in a manner that allows owners to attend in person as per SSMA 2015 Schedule 2 Clause 13, and that proper Notices and Agendas and Minutes must be provided to all Owners in Compliance with Schedule 2”? Your Explanatory Material might add that Owners are currently being denied their rights to attend a Committee meeting due to the Meetings being held by email. The Committee must act as directed by the OC, unless the OC directive is a breach of the Act.
Has a resolution been passed at a Committee meeting that enables Committee members to vote by email as per Clause 10(1)?
If there is work to be done at your scheme that your current Committee are not properly attending to then perhaps you and the other concerned owners in your scheme can proactively arrange quotes and propose Motions for inclusion at the next General Meeting. See Schedule 1 Clause 4. This will then bypass the Committee, who it appears may be dragging their heels.
Once you have your Motions submitted then a General Meeting can be held at any time if a qualified request has been provided i.e. a request made by one quarter of the aggregate unit entitlements. This could be as few as 11 owners from your total of 44 owners, depending on your unit entitlement aggregate total. You appear to already have 4 of the 11 owners required.
Perhaps you should contact the other owners via their address for service on the Strata Roll and seek support for the holding of an additional General Meeting that is sooner then the AGM, which, as you stated, is 8 months away.
STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 19
Other general meetings
19 OTHER GENERAL MEETINGS
(1) The secretary or a strata committee of an owners corporation may convene a general meeting (that is not an annual general meeting) of the owners corporation at any time.
(2) The secretary of the owners corporation, or another officer if the secretary is absent, must convene a general meeting (that is not an annual general meeting) of the owners corporation as soon as practicable, and not later than 14 days after, receiving a qualified request.
(3) A meeting may be convened on a qualified request even if the first annual general meeting has not been held.
(4) A request is a
“qualified request” for the purposes of this section if it is made by one or more owners of a lot or lots in the strata scheme having a total unit entitlement of at least one-quarter of the aggregate unit entitlements.bella – Thanks for the clarification.
You mentioned that the lots were sold off the plan…. Did the neighbouring owner undertake these renovations after the Settlement date on the property, or were these works carried out by the developer and/or building contractor at the request of the owner prior to the Settlement date i.e. was the owner’s purchase of the property contingent on the flooring being changed prior to Settlement? The dates on which this works occurred may make a difference as to who is responsible.
If the renovations occurred after the Settlement date then what you have described appears to be very unusual and appears to be another contravention of the Act by the neighbouring owner.
Alteration of the common property slab is a Section 108 issue and requires a Special Resolution by the OC at a General Meeting (i.e. 75% of the votes). It also requires the owner obtaining a by-law from the OC. The by-law must authorise the works, and should include an assurance that that the owner is responsible for repair and maintenance issues of the works.
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ssma2015242/s108.html
I would be immediately notifying your OC in writing about the unauthorised work to the slab (i.e. a breach of [s108]), and the non compliance with the conditions in [s110]. Also the need for a structural engineer’s report, and an acoustic report.
I would also be seeking assistance from the Office of Fair Trading ASAP and raising all of your concerns regarding the breaches of the Act, and the requirement for expert reports (structural, and acoustic). Be prepared to take this matter to the Tribunal if necessary.
Costa – Does your SC hold SC meetings? If so, when is the next SC meeting?
You could try a couple of different tactics:
1. Write a letter to the Committee outlining your concerns. Your letter should be tabled in the Correspondence section of the next SC Meeting, and should be discussed by the Committee.
2. To confirm that your Correspondence has been discussed why don’t you and the other concerned owners attend the next SC meeting? Perhaps you can back up your concerns by asking to speak about them at the meeting, if you are permitted to speak.
From Schedule 2:
13 NON-MEMBER OWNER MAY ATTEND
An owner or, if the owner of a lot is a corporation, any company nominee of that corporation is entitled to attend a meeting but is not entitled to address the meeting unless authorised to do so by resolution of the strata committee.
bella- I am not sure what you mean when you say that the slab was ‘drilled down’ to install timber flooring. What type of timber flooring was installed? Did the flooring have an underlay? Usually timber flooring is installed on top of another material (usually an acoustic underlay). I have not heard of the technique of ‘drilling down’.
With regard to installing or replacing wood or other hard floors this is deemed to be a ‘Minor’ renovation and needs approval by a general resolution (i.e. 50% of the vote) of the OC at a General Meeting. See Section 110 of the SSMA 2015.
The following conditions of Section 110 must be satisfied:
(4) Before obtaining the approval of the owners corporation, an owner of a lot must give written notice of proposed minor renovations to the owners corporation, including the following:
(a) details of the work, including copies of any plans,
(b) duration and times of the work,
(c) details of the persons carrying out the work, including qualifications to carry out the work,
(d) arrangements to manage any resulting rubbish or debris.
(5) An owner of a lot must ensure that:
(a) any damage caused to any part of the common property by the carrying out of minor renovations by or on behalf of the owner is repaired, and
(b) the minor renovations and any repairs are carried out in a competent and proper manner.
Owners and occupants must not cause a nuisance, and they must not interfere with the peaceful enjoyment of the owner or occupier of another lot.
The upstairs neighbour has breached the Act if they have installed a timber floor without the proper authorization by the OC.
If you can hear footsteps etc then the upstairs neighbour may have committed another breach of the Act – that of not carrying out the minor renovation in a competent and proper manner.
I would seek the assistance of the Office of Fair Trading in mediating this issue. At the very least you could be demanding that an acoustic sound test be carried out in your apartment at the neighbouring owner’s expense, with the expected outcome being that the timber flooring be uplifted and reinstalled with a better acoustic barrier being placed between the slab and the timber.
If you are unable to obtain a satisfactory resolution via Mediation then you have an option to seek an Order from the Tribunal (i.e. NCAT) to have the upstairs neighbour either: (a) reinstate the carpet, or (b) install a better acoustic underlay laid under the timber flooring.
From the description that you have provided it appears that your buildings may be classified as Class 1a. Your buildings may not be a buildings that is required to comply with the new fire safety regulations. Your building is also not a new building, having been built in 1970.
The new regulations appear to cover Class 2 to Class 9 buildings.
The definition of a Class 1a building is:
“A Class 1a building is a single dwelling being a detached house; or one of a group of attached dwellings being a town house, row house or the like.”
The description of your building does not support it being a Class 2 building. The definition of a Class 2 building is:
“Class 2 buildings are apartment buildings. They are typically multi-unit residential buildings where people live above and below each other. The NCC describes the space which would be considered the apartment as a sole-occupancy unit (SOU).
Class 2 buildings may also be single storey attached dwellings where there is a
common space below. For example, two dwellings above a common basement
or carpark.”Check with your local council to confirm your building classification to make sure it is a Class 1a building.
The Explanatory Note for the new regulations states:
The object of this Regulation is to implement some of the recommendations made as a result of the independent statutory review of the Building Professionals Act 2005. This is achieved by amending the provisions of the Environmental Planning and Assessment Regulation 2000 dealing with fire safety and building certification so as to:
(a) require plans and specifications to be submitted in relation to work on certain fire safety systems in class 2–9 buildings, and
(b) introduce critical stage inspections for class 2–9 buildings, and
(c) introduce a new alternative solution report for fire safety alternative solutions for class 1b – 9 buildings, and
(d) require fire safety statements and fire safety certificates to be in a form approved by the Secretary of the Department of Planning and Environment, and
(e) provide for the Secretary of the Department of Finance, Services and Innovation to recognise persons as competent fire safety practitioners (who are qualified, under the amended provisions, to prepare alternative solution reports and endorse plans and specifications).Goubtless – A couple of points worth considering are: The mere fact that a bed is placed in a room does not automatically reclassify it as a bedroom. However, the advertising should not state that a 2 bedroom unit is a 3 bedroom unit – this is misrepresentation.
The new SSMA 2015 has suggested that a by-law may be created by an OC to place occupancy limits on the number of adults residing in units. A suggestion is that a 2 bedroom unit has an occupancy limit of 4 adult persons. The number of children is not mandated. Do your by-laws contain an ‘occupancy’ provision?
NB: Where the 4 adult people chose to sleep within the unit, providing that the room is a habitable room, is up to the occupants themselves.
STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 137
Occupancy limits
137 OCCUPANCY LIMITS
(1) A by-law may limit the number of adults who may reside in a lot by reference to the number of bedrooms of the residence.
(2) The limit may not be fewer than 2 adults per bedroom.
(3) The by-law has no effect:
(a) to the extent to which it is inconsistent with any planning approval or other law applicable to the lot, or
(b) in any other circumstances prescribed by the regulations for the purposes of this section.
(4) To avoid doubt, the Tribunal may make an order under Division 5 about a by-law made under this section.
(5) The regulations may provide for the circumstances when a person is a resident of a lot for the purposes of a by-law made under this section.
(6) For the purposes of this section, a
“bedroom” is a room approved for use as a bedroom under, or indicated as a bedroom in any plans the subject of, a planning approval and includes any other room prescribed by the regulations as a bedroom for the purposes of this section.If you believe that the current unit entitlements at your scheme are unreasonable then you may seek an Order under SSMA 2105 [s236(1)(c)] and with it you must supply the necessary information that is required under this section.
Order for reallocation of unit entitlements
236 ORDER FOR REALLOCATION OF UNIT ENTITLEMENTS
(1) Tribunal may make order allocating unit entitlements The Tribunal may, on application, make an order allocating unit entitlements among the lots that are subject to a strata scheme in the manner specified in the order if the Tribunal considers that the allocation of unit entitlements among the lots:
(a) was unreasonable when the strata plan was registered or when a strata plan of subdivision was registered, or
(b) was unreasonable when a revised schedule of unit entitlement was lodged at the conclusion of a development scheme, or
(c) became unreasonable because of a change in the permitted land use, being a change (for example, because of a rezoning) in the ways in which the whole or any part of the parcel could lawfully be used, whether with or without planning approval.
(2) Matters to be taken into consideration In making a determination under this section, the Tribunalis to have regard to the respective values of the lots and to such other matters as the Tribunalconsiders relevant.
(3) Persons who may apply for order An application for an order under this section may be made by any of the following:
(a) an owner of a lot (whether or not a development lot) within the parcel for the strata scheme,
(b) the owners corporation,
(c) the lessor, in the case of a leasehold strata scheme,
(d) the local council, or by any other public authority or statutory body representing the Crown, being an authority or body that is empowered to impose a rate, tax or other charge by reference to a valuation of land.
(4) Application to be accompanied by valuation An application for an order must be accompanied by a certificate specifying the valuation, at the relevant time of registration or immediately after thechange in the permitted land use, of each of the lots to which the application relates.
(5) Qualifications of person making valuation The certificate must have been given by a a person who is a qualified valuer within the meaning of the Strata Schemes Development Act 2015 .
(6) Ancillary orders that may be made if original valuation unsatisfactory The Tribunal may, if it makes an order allocating unit entitlements that were not allocated in accordance with a valuation of a qualified valuer and, in the opinion of the Tribunal, were allocated unreasonably by an original owner, also order:
(a) the payment by the original owner to the applicant for the order of the costs incurred by the applicant, including fees and expenses reasonably incurred in obtaining the valuation and the giving of evidence by a qualified valuer, and
(b) the payment by the original owner to any or all of the following people of the amounts (if any) assessed by the Tribunal to represent any overpayments (due to the unreasonable allocation) for which liability arose not earlier than 6 years before the date of the order:
(i) the lessor, in the case of a leasehold strata scheme,
(ii) the owners corporation,
(iii) the owners of lots.
(7) Lodgment of order The owners corporation must ensure that a copy of an order made by the Tribunal under this section is lodged in the Registrar-General’s office no more than 6 months after the order is made. Nothing in this section prevents a person who is entitled to apply for an order under this section from lodging a copy of an order made under this section.
Note : Section 246 contains provisions with respect to the recording of an order made under this section.
scapegoat – The committee is not permitted to make a decision that is outside of their responsibility. See [s36(3)(a)] below. The decision made by the committee is invalid as it is in breach of the Act.
NB: Does your scheme have a Strata Manager? If so then most of the Treasurer’s duties are generally fulfilled by the Strata Manager e.g. preparation of Budgets etc. What duties does the Treasurer do that justifies her honorarium?
Perhaps you can propose your own Motion about the Honorarium at the next General Meeting (either an EGM or AGM)? You would need to submit it as early as possible to avoid it missing the deadlines. Your Explanatory Material may be derived from some the suggestions that others have made on this thread.
Instead of 1/4 of the levies you could propose making it a much lower amount e.g. $200.00, or a dinner voucher at the local RSL Club(?). Then your Motion will be added to the committee’s honorarium motion. At the GM the Honorarium Motion will become a Motion with Alternatives. The OC will then to get vote on either the lower amount that you proposed – or the higher amount that the committee proposed. Given a choice your OC may chose to adopt your alternative.
There should be no expectation from the Treasurer that they should be granted an honorarium. That is not the purpose of an honorarium.
STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 36 Functions of strata committee
STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 36
Functions of strata committee
36 FUNCTIONS OF STRATA COMMITTEE
(1) A strata committee has the functions conferred on it by or under this or any other Act.
(2) A decision of a strata committee is taken to be the decision of the owners corporation. However, in the event of a disagreement between the owners corporation and the strata committee, the decision of the owners corporation prevails.
(3) The following decisions cannot be made by the strata committee:
(a) a decision that is required by or under any Act to be made by the owners corporation by unanimous resolution or special resolution or in general meeting,
(b) a decision on any matter or type of matter that the owners corporation has determined in general meeting is to be decided only by the owners corporation in general meeting.
(4) An owners corporation may in general meeting continue to exercise all or any of the functionsconferred on it by this Act or the by-laws even though a strata committee holds office.
As JT says an OC can authorise a committee person to be granted a payment (honorarium) in recognition of the services that they have performed throughout the preceding year. It cannot be authorised in advance.
This authorisation should come from a Motion on the Agenda of the AGM and that is approved at an AGM. It would be interesting to find out who is proposing the Motions that are placed on the AGM Agenda that ask the OC to authorise this payment? Is it the Chairperson herself? I would have thought that it would, at the very least, be unseemly for the Chairperson to nominate her own reward for service.
Is there any Explanatory Material being presented with the Motion which seeks to justify the payment? How was the amount determined? Is it reasonable under the circumstances, or is it excessive?
This type of reward for service payment is generally unusual as people who nominate for a position on the committee usually do so without expectation of fee or reward.
Any honorariums would be paid from the Admin Fund.
The relevant section of the Act is below:
STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 46
Payment of officers of owners corporation
46 PAYMENT OF OFFICERS OF OWNERS CORPORATION
An owners corporation may pay to a person who is an officer of the owners corporation or another member of the strata committee of the owners corporation an amount determined by the owners corporation at an annual general meeting in recognition of services performed by the person for the owners corporation in the period since the last annual general meeting.
As a further complication to this issue …. what type of work is the Chairperson doing that she is being reimbursed for? Is it merely admin work as part of her role as Chairperson or is she also doing additional voluntary work such as gardening, putting out the bins etc. If she in then this additional work should be first approved by the OC and no payment must be received for it. If payment is given then it may affect your insurance policy if the Chairperson becomes injured whilst undertaking this voluntary work.
Look Up Strata says this: ‘You cannot receive any reimbursement for the voluntary work you are performing. This may be in the form of monetary payments, ‘gifts’ or even discounts off your Owners Corporation fees. If any form of payment is received, the work can no longer be defined as voluntary, and you will not be covered under the Personal Accident section of the policy if you become injured.’
https://www.lookupstrata.com.au/volunteering-strata-property-personal-accident-cover/
scapegoat – Are you a member of the group that is permitted to inspect the records?
SSMA 2015 [s182(1)] states that the following persons are able to inspect the records:
‘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.’
The roll forms part of the strata records.
You should contact the Strata Manager of your Owner’s Corporation in the manner prescribed below. If your scheme has no Strata Manager then contact your Owner’s Corporation committee Secretary and/or Chairperson.
The Office of Fair Trading web site says this:
‘An owner or mortgagee (or their authorised person) can make a written request to the owners corporation to inspect the records. The request must be accompanied by the prescribed fee (currently $31 for the first hour of work).
The inspection is to take place as agreed by both parties. If no agreement can be reached within 3 days after the owners corporation receives the application, the owners corporation may stipulate the time and date by giving written notice. The inspection date cannot be later than 10 days from the date the owners corporation receives the notification.
Documents can be inspected in person or through electronic access to the documents or any other means agreed. A person may make copies of documents but must not, without the consent of the owners corporation, remove the document from the custody of the owners corporation.’
scotlandx – It is not [s106(4)] that deals with damages for breach of statutory duty …. it is actually [s106(5)].
[s106(5)] states:
‘An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.’
The two cases that you mentioned from 2016, James and McElwaine, were decided prior to the introduction of the new Act. The current position since the new Act was introduced is that an owner is advised to seek relief through the statutory law process i.e. the provisions in the Act, rather than the common law.
Although a claimant can no longer seek relief through the common law, a claimant is not left with no relief against an OC. This is because a claimant can now seek relief through SSMA 2015 [s106(5)] – breach of statutory duty.
McElwaine (which involved water ingress) would most probably have been decided quite differently under the new 2015 Act, than it was under the old Act.
Statutory negligence can be claimed against the OC rather than common law negligence. Negligence in statute is different from common law negligence. Negligence in statute refers to a claim for breach of a statutory duty. The OC’s statutory duty is contained within [s106(1)].
It is my understanding that in such cases of a breach of statutory duty it is not necessary to prove the existence of a duty of care, all that one has to do is establish that the OC was obliged to take some action under a statute or regulation, and that the OC has failed to do so, and that as a result the claimant suffered an injury or loss. The loss can be a financial loss. (NB:There is no need to prove the 4 common law elements of negligence which I mentioned in a previous comment.)
Owner’s corporations face an increased exposure to liability claims under the 2015 Act if they fail in their statutory duty to repair and maintain common property. OCs need to be aware of this and should adjust their insurances accordingly.
This article is well worth reading:
meganpepi – If you can’t get any help from the owner’s corporation insurance company then it may be worth your while seeking help from the Office of Fair Trading and the Tribunal.
As JT said, a claim of negligence may be brought against the owner’s corporation in some situations.
Negligence may be able to be claimed against the owner’s corporation by the owner if the poor condition of the roof existed for such a length of time that the owner’s corporation should have discovered and remedied the condition. There are 4 elements to be satisfied in a negligence claim: duty, breach of duty, causation, and damages.
The Tribunal has the power to make an Order for reimbursement of costs to the owner if the owner’s corporation is found to be negligent.
The owners corporation has a statutory duty and a strict liability to the owners to repair and maintain the common property:
[s106(1)] Strata Schemes Management Act 2015 states:
An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
[s106(5)] of the Strata Schemes Management Act 2015 expressly provides a lot owner with a statutory action to recover losses as a result of an owners corporation’s failure to maintain the repair and condition of common property. [s106(6)] allows an owner a time frame of 2 years to bring an action against the owner’s corporation.
SSMA 2015 Sections 106 (5) and (6) states:
(5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.
(6) An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss.
Have you tried contacting the LPI NSW on 1300 052 637 to ask for advice, or this service:
Here is a case study that you might find useful from a NSW strata building, ‘Wallis View”, including a Special By-Law Motion.
https://greenstrata.com.au/case/solar-power-common-property-personal-use-wallisview