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Replacing a kitchen cabinet would not be a matter that gets decided by the SC. Replacing a kitchen cabinet would be deemed to be a Minor Renovation.
From the NSW Fair Trading site:
You need approval before doing any minor renovations. An owner must get the owners corporation to approve these renovations by general resolution (over 50% of votes in favour).
Minor renovations include:
- renovating a kitchen
- changing recessed light fittings
- installing or replacing wood or other hard floors
- changing internal walls
- sustainability measures (such as a clothesline or reverse cycle air conditioner). However, these cannot involve changing the outside appearance of a lot or structural changes.
The approval process may need the owner to give details of the work. This may include:
- any plans of the work
- when the work will be carried out (times and dates)
- qualifications and details of the tradespeople who will do the work.
Ask your SM why the Motion was left out of the EGM. Put the SM and the Secretary ‘on the spot’ at the EGM. Also get their response in writing in case you need to take this matter further.
If you do not get a satisfactory answer and you submitted your Motion within the required time frame prior to the EGM (i.e. prior to Notice of the EGM) and did all that was necessary then I would demand that the SC convene another EGM to deal with your Motion as soon as possible at the OC expense.
Motions that have been correctly submitted by Owners cannot be deliberately left off an Agenda. The Secretary has wasted the OC’s money if he failed to include your properly submitted Motion and another EGM is required to be convened.
Motions must be on the General Meeting Agenda. A Motion not on an General Meeting Agenda cannot be voted upon. This is different from an ordinary Strata Committee meeting.
See SSMA 2015 Schedule 1:
https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma2015242/sch1.html
David2708 – My experience as a Qlder has been that the interpretation by Adjudicators of this type of by-law is not as strict as you are suggesting. Draping of laundry over a balcony railing would not be permitted but small discreet clothes lines are OK. After all, no one wants to hang their ‘intimate apparel’ on a public clothes line …. do they?
Some people don’t own or don’t want a clothes dryer, and some types of clothing materials are wrecked by being placed in a clothes dryer.
In my opinion a mini clothes line would be OK for drying clothes if it is the height of the balcony railing or less, but hanging items over a balcony railing would not be OK.
pielover – An application to resolve matters through both NSW Fair Trading and NCAT requires a basis from within the SSMA 2015. In other words, there must be jurisdiction under the SSMA 2015.
You may be able to raise your concerns about abusive behaviours, lack of transparency etc both through Mediation and NCAT Conciliation.
If you are having difficulty trying to work out which section of the Act is relevant when submitting a NSW Fair Trading application or an NCAT application and/or which Order to select then you are advised to contact NSW Fair Trading for assistance on 133220. NB: Your issue may not need to be Mediated first.
Mediation:
For a list of what is required before applying for Mediation from NSW Fair Trading see page 1 of the following Mediation application document:
https://www.fairtrading.nsw.gov.au/biz_res/ftweb/pdfs/About_us/Forms/medform.pdf
The form for applying for Mediation asks ‘what issues do you want to bring to mediation’ and ‘what are you hoping to achieve from mediation’? These are less ‘formal’ question than are asked on the NCAT application form.
NCAT:
Most strata applications make it compulsory for Mediation to be carried out through the NSW Fair Trading before applying to NCAT. However, some strata applications do not require Mediation. It depends very much upon what sections of the SSMA 2015 are the subject of the Order, and what Orders you are seeking from the Tribunal. More than one Order can be requested.
A list of Sections of the Act that can form the basis of an Order, and a list of Orders that require Mediation prior to applying to NCAT (and those those that do not require Mediation) can be found at pages 5 to 14 in the following document.
https://www.ncat.nsw.gov.au/Documents/ccd_form_strata_application.pdf
Strata applications are listed for either (1) conciliation and hearing or (2) a directions hearing. The type of hearing will depend on the orders you are seeking.
Conciliation creates an opportunity for you to:
- tell your side of the story in a free and open discussion
- listen and get a better understanding of the other party’s issues
- resolve the dispute mutually and quickly on the day
- find a solution that makes sense to both of you.
Directions hearings are used for more complex strata matters.
I am not sure that I agree with Jimmy T and Sir Humphrey that storing a car in a storage area would be legal or safe.
Storage areas usually prohibit the storage of flammable items. The storage of a car in this area could create a fire hazard and breach the terms of the scheme’s insurance policy. Cars contain flammable fuel.
I guess you would need to look at the by-laws regarding what type of materials are prohibited in your storage areas.
gwyn – Your scheme layout sounds different from most.
Some Strata Plans indicate that buildings do not form common property. What does your Strata Plan say?
It is possible to prepare a strata plan where it is intended that the buildings form part of their respective lot and not become common property.
In these instances the following conventions apply:The floor plan is prepared differently and it must show the following: (1) The walls will be shown by thick broken lines unless they form a lot boundary. (2) There will be only one floor plan regardless of the number of levels in the building. The floor plan will represent the perimeter walls of the building at ground level. (3) The plan must have a statement indicating that the building forms part of the lot and is not common property for example. ‘The structure of the building standing on each lot, including walls, floors, ceilings and roofs, form part of the lot and is not common property.’
See page 21 of this document for a more detailed explanation and examples:
https://rgdirections.lpi.nsw.gov.au/__data/assets/pdf_file/0005/143078/Strata_Plans_Fast_Facts.pdf
However, if your Strata Plan does not indicate that the buildings do not form common property then your Owner’s Corporation will need to formalise the responsibility for maintenance and repair. A verbal agreement from 2004 is definitely not good enough.
Even with an SSMA 2015 [s106(3)] special resolution an OC cannot opt out of the responsibility for common property structural repairs or painting (i.e. appearance of common property) etc.
106 Duty of owners corporation to maintain and repair property
(1) 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.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
(3) This section does not apply to a particular item of property if the owners corporation determines by special resolution that:
(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.
meaw206 – Can you get written clarification from your solicitor, either by letter or by email, as to what is on your Title?
In addition, you may need to contact your Strata Manager and ask to look at a copy of (1) the Registered Strata Plan, (2) the unit entitlement plan, and (3) the by-laws? Also look at how other people in your building are using these spaces.
How does the Plan describe the spaces that you have issues with? Car spaces should be defined on the Plan, as should storage spaces. Storage areas are generally much smaller in size than car spaces. Are there any specific notations on the Plan regarding these spaces?
Your unit entitlements are based on what is included within your Title. What do your unit entitlements reveal about these spaces?
Do your by-laws outline what spaces are designated as car spaces, or storage spaces? What is permitted within each space?
What is the normal practice at your building? Are other owners using similar spaces for a car space? Is the space ‘open’ or is ‘enclosed’? Does the space that you wish to garage your car within have the appearance of a garage space i.e. does it have a garage door?
If the space that you would like to become a car space is not designated on the Strata Plan or the original Development Application (DA) as a car space then there may be a reason for it. Perhaps changing the use of the space from a storage area to a car space could impact fire safety etc. You would need to gain approval from the Owner’s Corporation at a General Meeting, and approval from the Department of Planning and Environment for the change of use of this space.
To find the answer to your questions may I suggest that you check all of the above.
NB: The size of the car space at 2.3 metres wide will be tight, but not unheard of, particularly in older buildings. Jimmy T has previously stated that: The regulation minimum dimensions of 2.4 metres wide and 5.4 metres long are used by most councils and developers when planning parking layouts.
The fact that under the new Act an owner may now sue the OC for breach of statutory duty to repair the common property if they have suffered a reasonably foreseeable loss may be a ‘wake up call’ to those owners who lack motivation.
Please read the following opinion from Moray and Agnew Lawyers, particularly the final comment about SSMA 2015 [s106(4)].
In addition to my response above here is an extract from the Office of Fair Trading web site regarding inaction on common property repairs:
If no action is being taken, a lot owner can put a motion requesting repairs to the next meeting of the owners corporation. If the matter remains unresolved, an application for mediation may be made with Fair Trading.
Before you take this matter to NCAT you would need to show that the OC has refused to undertake the work.
It is unclear from your comment whether these options for repairs have been raised in a Motion with Alternatives at a General Meeting, and voted on at a General Meeting. If these options have not yet been voted on at a General Meeting then there would not be sufficient grounds at this time to take this matter to NCAT, in my opinion.
However, if the issues of repairs and the raising of a special levy have been previously voted on and the majority vote was NO then you may have a case to take to NCAT. Can you please advise what actions have been taken to have this matter resolved so far?
From SSMA 2015:
106 Duty of owners corporation to maintain and repair property
(1) 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.
supersleuth – SSMA 2015 Schedule 1, Part 2 Section 4:1 states that Any owner, or any person entitled to vote at a general meeting of an owners corporation, may require a motion to be included in the agenda of the next general meeting of the owners corporation.
It is not only the SC that is permitted to submit Motions. Any lot owner is within their rights to submit a Motion, including a Motion with alternative quotes, as long as they undertake the correct procedure indicated in Section 4. The written notice submitted by the owner must include an explanatory note of up to 300 words.
The obtaining of quotes is not one of the functions that may only be delegated to the SC (see SSMA 2015 [s13]).
https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma2015242/s13.html
Once the OC has selected the quote that they prefer out of the three presented at the EGM, and the OC has approved the quote at the EGM by the relevant voting method, then it is immaterial who proposed the quote.
If you are unhappy with the Motion then there is always an option to vote NO.
I am not sure whether this is the case in NSW but … in QLD if the SC has a particular concern about an owner’s Motion then the SC can recommend that the OC members vote NO to the Motion. The reasons for the SC’s recommendation to vote NO can be presented to the OC members via Extra Material when the EGM notice is sent out to all owners. However, the SC must have decided to include this extra material via a majority resolution at an SC meeting prior to the EGM. The submitting of this extra material recommending a NO vote cannot be done on a personal whim – it must have the majority support of the SC and be properly Minuted.
Ange – Can you provide some additional information please?
What was the purpose of the Reports and the circumstances surrounding the obtaining of the Reports? Who undertook the Reports? What do the Reports recommend? And … are the cracks a structural issue or are they merely cosmetic?
It appears that in addition to the SC Chairperson acting ultra vires, there are issues with SC transparency at FrustratedLNS’s scheme.
These are easily fixed. May I suggest that FrustratedLNS nominates for a committee position at the next AGM so as to be ‘in the loop’.
May I also suggest the following procedures be worked through to tighten the ‘informal’ workings of the current SC:
(1) FrustratedLNS raises a Motion at the next AGM which deals with the issue of SC spending limits. The OC at a General Meeting Motion grant the SC a maximum spending limit. The amount should be dependent on the number of Lots in the scheme. Common property plant pruning may then fit within the SC spending limit. If not then the matter would need to be decided at a General Meeting.
(2) The SC could then approve common property pruning at either an SC meeting or outside of an SC meeting via email etc (if this is permitted at the scheme). To vote outside of a committee meeting the SC may pass a resolution to adopt any of the following means of voting by the committee:
- voting by teleconference, video-conferencing, email or other electronic means by a member while participating in a meeting from a remote location, or
- voting by email or other technological means before the meeting at which the matter is to be determined by the committee. This can include accessing a voting website or even a Facebook page. This form of voting cannot be used for the election of officers of the strata committee.
Unlike general meetings, the strata committee can vote on a motion even though a meeting was not held, if the committee votes in writing. For this to be a valid vote, the correct procedure for giving notice of the meeting must have been followed and a copy of the motion to be voted on should be given to each committee member.
The motion is approved if the majority of strata committee members, other than any tenant member, approve the passing of the motion in writing.
(3) Any SC decisions made outside of an SC meeting would need to be Minuted at the next SC meeting for transparency. It is a requirement that the SC keep a record of all decisions. The minutes must include details of all resolutions passed, including those considered without holding a meeting.
The key words are “previous tenant”. I would think that the damage from the previous tenants should have been brought to the attention of the OC, the lot owner and/or the Letting Agent when the damage occurred.
In my opinion it is now too late for the damage to be paid for by the Owner as the Owner cannot recoup the money from the rental bond once the tenants have vacated the property and the bond has been released.
In my opinion the OC should now bear the cost. However ‘unfair’ this appears to be, it is a reminder that any damage to common property should be brought to the attention of the OC as soon as the damage occurs. This enables immediate action to be taken.
I live in Qld where Capital Works Funds (or Sinking Fund Forecasts) are mandatory. I have always found these documents to be extremely useful and well worth the professional expense.
A forecast is usually prepared by a Quantity Surveyor (though there’s no legal requirement for that in Qld) who inspects the site. They’re looking for what works need doing and the condition of infrastructure so they can then estimate how long it’s likely to last and what will or won’t need replacing.
Then they do some complicated calculations to work out how much those works will cost in the future and put the whole lot into a comprehensive report breaking down the collection into specific time periods.
Quite literally the Sinking Fund Forecast tells a strata owners corporation how much to collect and when to collect it.
Quantity Surveyors provide 15 year forecasts. To remain current the document only needs to be updated every five years. The best use of a Sinking Fund Forecast is if the document is updated regularly to account for unplanned expenditure.