Forum Replies Created
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Replies
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JT and Austman – My point is that there has never been a Special Resolution moved and approved regarding this renovation, therefore, the OC responsibility under [s108] would not apply.
I agree that the Council will chase the OC first as they are the easiest to get money out of, and to get results from. However, the issue should not rest there.
If the OC is required by Council undertake work and to pay for anything regarding this issue then the OC should then chase the current Owner for any monies that the OC has expended in sorting this matter out. This is permitted under [s120] – Owners corporation may carry out work required to be carried out by others. The power to enter is contained within [s122(1)(b)].
If the current owner refuses to pay then the matter should go to the Tribunal. The power is contained within [s132]. The OC should not be chasing the previous owner.
If the current owner ends up having to foot the bill then they can chase the previous owner if they wish to do so, although in my opinion, it is the current owner who will end up wearing the cost.
Whenever a unit is purchased there should be due diligence investigations of the strata records pertaining to the purchased Lot. Red flags should have been raised when the purchaser saw that renovations had been done on the unit and yet there were no records of their approval. Did the current owner even conduct a search of the strata records? Many people don’t do this.
This issue has the potential to cost the OC a whole heap of money so don’t capitulate. In my opinion, just because the OC may have the capacity to bear the full cost of fixing this mess doesn’t mean that it should.
The OC should be seeking legal advice about this issue. This issue becomes even more complicated if the previous owner misrepresented information about the addition prior to the completion of the sale etc. Was the new cellar created out of common property? This is not clear. Was the common property slab interfered with?
In my opinion an OC should not be ultimately responsible for an illegal addition. The OC may initially be made responsible by the Council but then the OC can shift the responsibility onto the current owner who has inherited the defects and mistakes of the previous owner.
If the OC was to be made responsible for every illegal addition then there would be many more owners doing it.
Similar answer to JT.
Caveat emptor = buyer beware. The buyer has ‘inherited’ the problems of the previous owner when they purchased the Lot. The responsibility lies with the new owner to obtain the correct approvals. The responsibility does not lie with the OC.
Due diligence inspections by the new owner of the strata records should have revealed that no approval had been given by the OC for the renovations.
In my opinion your OC should write a letter to the new owner stating that: the previous owner’s renovations have not been approved; and that the previous owner has breached certain conditions in the Act and the by-laws; and that the OC, as a last resort, can seek an Order from NCAT that the cellar is removed at the owner’s expense.
If the new owner wants to prevent the OC from seeking such an Order then the new owner, at the very least, should be asked to obtain a structural engineer’s report certifying that the structural changes are compliant.
Your OC can approve all of these renovations retrospectively after the new owner has submitted all of the correct Motions relating to the renovations, including an indemnity.
Give the new owner a deadline for the structural engineer’s report and the Motions e.g. 30 days.
I can’t understand how the owners in the building were not alerted when this major work was being undertaken.
Matt – As you have stated the OC is responsible for the repair of the telephone line on the common property. You are responsible for the cable and sockets within your unit.
Telstra etc will only take your line to the A side of the MDF. You will need an ACMA approved telephone cable technician to take it the rest of the way. Can you obtain a quote from a cable technician and send the quote to the OC along with the report from your phone provider? This might speed up the repair process and may work in your favour in obtaining the repairer of your choice.
You will be required to pay for a portion of the costs i.e. for those items that are not located on common property.
Here is a brief explanation of the process from sydelec:
If you have a new ADSL or Naked DSL service, your ISP may have advised you that you need to have an ACMA Registered Cabler install “A to B Jumpering” in your building’s MDF.
What is an MDF?
MDF is the abbreviation for Main Distribution Frame. Essentially, it is the place in a Strata building or a commercial building where the copper Telstra telephone lines come in from the telephone exchange and are distributed throughout the building.What is “A to B Jumpering” or an “MDF Jumper Connection”?
A to B jumper connection at the MDF is the interconnection of a Customer’s line (from the MDF to their telephone socket in their apartment or commecial suite) to the ISP or Telstra’s line from the telephone exchange.Strademocrat – If your SM has a history of ‘clerical errors’ then that may be a good reason for searching for and selecting another SM at your next General Meeting. In addition, if your Committee is also complicit then perhaps they should be replaced too.
Stratademocrat – Your problem might be arising from a lack of clarity with your preferred method of receiving notices. These details are contained within the strata roll. See [s178] of SSMA 2015 which I have included below.
Your address for services of notices on the strata roll can be either a postal address or an email address. Perhaps you should contact your SM and advise them that your address for service of notices is now your email address rather than your postal address and that all notices, including committee meeting notices, are to be emailed to you rather than posted to you. See [s263(3)] of the Act.
Your postal address will still be noted on the roll however your primary contact will be via your email address.
Although you seem to be largely concerned with committee meeting agendas it may be appropriate for your OC to change the way general meetings are held and voting papers are issued by passing a resolution motion about this issue at your next general meeting. The Act allows for:
- voting by means of teleconference, video-conferencing, email or other electronic means while participating in a meeting from a remote location,
- voting by means of email or other electronic means before the meeting at which the matter (not being an election) is to be determined by the corporation or committee (pre-meeting electronic voting).
178 Content of strata roll
(1) Information about lots The following information must be recorded in the strata roll in relation to a particular lot in the strata scheme:
(a) the name of the holder of the estate in fee simple in the lot (in the case of a freehold strata scheme) or the holder of the leasehold estate in the lot (in the case of a leasehold strata scheme),
(b) an address for service of notices,
(c) an Australian postal address, and an email address if the holder has one, if not provided as the address for service,
(d) the name of the holder’s agent (if any) appointed in accordance with this Act and the agent’s address for service of notices,
(e) information provided under a strata interest notice,
(f) information provided under a tenancy notice.
Codes of Conduct can be both a shield and a sword. Codes of Conduct are useful for situations where owners sometimes mistakenly and/or maliciously accuse the committee of breaches of codes of conduct.
An interpretation of the meaning of these provisions is here:
https://www.mystrata.com/doc-store/Code_of_Conduct_for_Committees_Aug_07.pdf
I am not sure about other States but the QLD BCCMA also has codes of conduct for other parties associated with the body corporate schemes:
SCHEDULE 2–CODE OF CONDUCT FOR BODY CORPORATE MANAGERS AND CARETAKING SERVICE CONTRACTORS 1. Knowledge of Act, including code 2. Honesty, fairness and professionalism 3. Skill, care and diligence 4. Acting in body corporate’s best interests 5. Keeping body corporate informed of developments 6. Ensuring employees comply with Act and code 7. Fraudulent or misleading conduct 8. Unconscionable conduct 9. Conflict of duty or interest 10. Goods and services to be supplied at competitive prices 11. Body corporate manager to demonstrate keeping of particular records
SCHEDULE 3–CODE OF CONDUCT FOR LETTING AGENTS 1. Honesty, fairness and professionalism 2. Skill, care and diligence 3. Acting in body corporate’s and individual lot owner’s best interests 4. Ensuring employees comply with Act and code 5. Fraudulent or misleading conduct 6. Unconscionable conduct 7. Nuisances 8. Goods and services to be supplied at competitive prices
Hi Scot. The ‘penalty’ that I was referring to is not a financial penalty … the penalty is the potential to be removed from the committee for a code of conduct breach. The ultimate removal is done by the body corporate and not the committee, and only after a process that spans two general meetings.
It’s a pity that NSW didn’t go down the same path as Qld by including a formalised Code of Conduct in the new(ish) NSW Act. From memory, it was mooted. It would certainly have gone some way to smartening up the behaviour of some of the NSW committees!
el capitan – I can understand why you are attempting to create a code of conduct, however, they can be ‘toothless’ unless they are enforceable and contain a penalty for any breach. Are you able to insert a breach provision?
You may find useful the sections below which are from a QLD perspective. They are the Code of Conduct that is contained within QLD body corporate legislation; and the penalties for breaching the code of conduct. NB: On becoming a committee voting member in QLD, the person is taken to have agreed to comply with the code of conduct.
Body Corporate and Community Management Act 1997 – SCHEDULE 1A
— Code of conduct for committee voting members (section 101B and schedule 6, definition code of conduct)
1. Commitment to acquiring understanding of Act, including this code
A committee voting member must have a commitment to acquiring an understanding of this Act, including this code of conduct, relevant to the member’s role on the committee.
2. Honesty, fairness and confidentiality
(1) A committee voting member must act honestly and fairly in performing the member’s duties as a committee voting member.
(2) A committee voting member must not unfairly or unreasonably disclose information held by the body corporate, including information about an owner of a lot, unless authorised or required by law to do so.
3. Acting in body corporate’s best interests
A committee voting member must act in the best interests of the body corporate in performing the member’s duties as a committee voting member, unless it is unlawful to do so.
4. Complying with Act and this code
A committee voting member must take reasonable steps to ensure the member complies with this Act, including this code, in performing the member’s duties as a committee voting member.
5. Nuisance
A committee voting member must not—
(a) cause a nuisance on scheme land; or
(b) otherwise behave in a way that unreasonably affects a person’s lawful use or enjoyment of a lot or common property.
6. Conflict of interest
A committee voting member must disclose to the committee any conflict of interest the member may have in a matter before the committee.
Body Corporate and Community Management (Standard Module) Regulation 2008 – SECT 34
34 Notice for breach of code of conduct—Act, s 101B 34 Notice for breach of code of conduct—Act, s 101B
(1) If a body corporate believes a voting member of the body corporate’s committee has breached the code of conduct for the member, the body corporate may decide, by ordinary resolution, to give the member a written notice stating each of the following—
(a) that the body corporate believes the member has breached a stated provision of the code of conduct;
(b) details sufficient to identify the breach in not more than 600 words;
(c) that the member may give any other member of the body corporate, within the stated period of at least 21 days after the member is given the notice, a written response to the notice in not more than 600 words;
(d) that, if asked by the member, the body corporate will pay the member all postage charges and photocopy expenses reasonably incurred by the member in giving a written response under paragraph (c) to any other member of the body corporate;
(e) that the body corporate is to consider a motion to remove the member from office for the breach at the next general meeting of the body corporate called after the period mentioned in paragraph (c) ends.
(2) If asked by the member, the body corporate must pay the member all postage charges and photocopy expenses reasonably incurred by the member in giving a written response under subsection (1)(c) to any other member of the body corporate.
Thanks Scotlandx for pointing out the error – Apologies for the confusion. I meant ‘Motion’ rather than ‘by-law’.
The linked article states:
“I was asked several times whether a lot owner could have someone else attend on their behalf (the answer is yes – provided they complete a proxy form naming that person as their proxy), and whether they could have a support person attend (the answer is yes – 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.”
I agree with Puddn. If there is a by-law permitting this type of storage then your neighbour cannot object to you installing it.
Is there a condition in the by-law about getting DA approval? If not then just comply with any conditions that are included in the by-law and go ahead and install the storage unit.
The OC may own the dividing line as they are probably responsible for maintaining (i.e. re painting it) it so perhaps you would be safer keeping the unit within your car space. This could be something about which you check with your committee or your SM.
Puddn – That is useful information, and the details may be a beneficial guide to an OC’s creation of a flooring by-law.
The original question from ‘Dingo’ was regarding the installation of a floating timber floor within a ground floor apartment of a strata scheme that apparently had no by-laws regarding flooring and therefore no conditions regarding flooring.
The flooring of a ground floor apartment would generally not fit within one of the BCA compliance categories.
Deemed to Satisfy Requirements: Sound Insulation Rating of Floors
A floor in a Class 2 or 3 building must have an Rw + Ctr (airborne) of not less than 50 and an L’n,w + Cl (impact) not more than 62 if it separates
I. sole-occupancy units; or
II. a sole-occupancy unit from a plant room, lift shafts, stairway, public corridor, public lobby or
III. the like, or part of a different classification.
From memory ‘Dingo’ was being asked by the SM to satisfy several expensive and onerous conditions that were not contained within any authorising by-law. If the OC wants to impose conditions then it cannot do this retrospectively. It must do so by the passing of a reasonable authorising by-law at a General Meeting. The committee, (and the SM) do not have the authority to impose conditions arbitrarily.
In the situation where there was no authorising by-law ‘Dingo’ could reasonably raise a Motion stating:
“That in compliance with [s110] SSMA 2015 the Owner’s Corporation approves the installation, by a qualified flooring specialist, of a floating timber floor that complies with the sound insulation rating currently required by the BCA for a ground floor unit within a Class 2 buildings”.
Approval of this flooring Motion would require an Ordinary Resolution i.e. a simple majority. Approval cannot be unreasonably with held.
In addition to such a Motion, and within the Explanatory Material (or within an accompanying ‘notice’ correspondence) Dingo would need to comply with [s110(4)] of the SSMA 2015 which states:
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.I understand that anyone can attend an AGM unless a by-law states otherwise. Those who are not owners would need to provide their name to the Chairperson and/or Secretary prior to the meeting to enable their attendance to be recorded in the Minutes. Only an Owner or their authorised proxy is permitted to Vote.
The Chairperson should lay down at the beginning of the Meeting the rules about who is permitted to speak and ask questions . One of these rules could be, as suggested by Sir H, that only the proxy be permitted to speak on behalf of an owner but not a third person.
A useful link is here: https://www.lookupstrata.com.au/nsw-owners-corporation-proxies-participation-general-meetings/
There are various books that may assist the Chairperson in difficult Meetings as the Act is not overly helpful in this area:
Meeting Procedure Made Easy By David Julian Price. Published by Cascade Publishing.
Guide for Meetings and Organisations By N.E. Renton. Published by the Law Book Company
Joske’s Law and Procedure at Meetings in Australia By Eilis S Magner. Published by The Law Book Company
tibx17 – I would think that if the lattice extension was unauthorised when it was installed then it would not be the OC’s responsibility to maintain it.
In my opinion the SM are changing their Contract conditions if they begin to ask a fee to access the OC records when previously the contract was entered into with no such conditions. This could trigger a breach of contract claim by your OC.
If your SM is unhappy with the conditions of their contract then they have an option to seek to terminate the contract.
Does the SM contract give any guidance as to the methods by which variations in conditions are to be managed? If one of these is to seek OC approval at a General meeting, and your OC was to agree to fees being charged then the fees should apply to all those who are seeking access not just specific people, such as yourself. The issue of fees is not a matter for the committee to decide but is for the whole of the owners to decide at a general meeting.
The SM should be asked to justify why fees should be imposed on access.
The OC owns these records. The SM is merely storing them on behalf of the OC. You, as an owner, have a right to access these records. Photocopying of these records is permitted (usually for a fee imposed by the SM for use of their equipment) therefore you should be able to scan or photograph them.
You shouldn’t need to reveal what you are searching for.
I am not a lawyer.