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Following on from JT’s debt collection thread is this recent article: https://www.google.com/amp/s/www.lookupstrata.com.au/nsw-why-leave-it-so-long-to-recover-strata-levies-in-arrears/amp/
I am assuming that the timber floors are original to the building.
What is the nature of the damage that you are referring to? Was the damage to the timber flooring caused by or exacerbated by the laying of the carpet by the Owner? If so then the modification to the flooring would, in my opinion, shift the responsibilty from the OC to the Owner.
Lacquering and staining of the original flooring has always been an Owner responsibility.
My comment won’t add anything substantial to this discussion apart from information …. Unfortunately an acute sense of hearing can be a female ‘thing’. I have a far better sense of hearing (and smell) than my husband who is not bothered by many ‘ nuisances’ that bother me. The majority of the comments about ‘nuisance noise’ on this Forum come from our female contributors.
https://www.health.com/mind-body/5-surprising-ways-men-and-women-sense-things-differently
All that being said, perhaps this is a simple matter of having a plumber look at the pipes. Water hammer can be fixed. There may be issues with the pumps, flow valves, restrictions in the galvanised pipes etc. As buildings age so does their plumbing. This could be a better way of solving the problem.
Wendy – If the flooring in the upstairs apartment is compliant there is nothing much that you can do apart from attacking the problem from your side of the floor/ceiling slab. If you are worried about the quality of the upstairs acoustic report then you can you carry out your own acoustic testing to verify that it complies.
Can you speak to an acoustic engineer … perhaps there is something that can be applied to your own apartment interior to dampen the noise? Foam ear plugs that you change frequently to prevent ear infections may also help.
Peter Gray – The following article may provide some assistance:
https://www.lookupstrata.com.au/nsw-removal-of-dangerous-trees/#comments
In NSW if the Owner Corporation (OC) or the Strata Committe (SC) wishes to seek legal advice or take legal action where the cost will be borne by the Strata Scheme then they need an authority to proceed motion to be resolved at a general meeting.
Limited circumstance exceptions to this requirement for a resolution at a general meeting are when the SC may approve such legal action when:
(1) the matter is urgent AND the legal costs do not exceed $15,000.00, or
(2) the matter is not urgent AND the cost does not exceed $3,000.00.
Quotes for legal costs should be obtained prior to proceeding to ensure that the correct process is being undertaken.
The relevant section in SSMA 2015 for authority, exceptions, and notifications etc are found in [s26] and [s103] and [s105].
Contributions for legal costs awarded in proceedings between owners and OC are found in [s90].
https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma2015242/
I deleted my comment as Jimmy T and Sir Humphrey have covered it!
You have raised multiple issues in your comment. I will try and provide some guidance on a couple of them.
Issue 1 – Bully Chairperson:
Try and stay the course if you can. “Right” will beat “might”. I too have been subject to similar bullying from a Chairperson in a previous scheme when I was Secretary.
The Secretary position is probably a more important position than the Chairperson’s position – although the ‘macho’ Chairperson would probably take great offence at this suggestion!
Under the SSMA 2015 the Chairperson’s functions are as follows:
42 Functions of chairperson of owners corporation
The functions of the chairperson of an owners corporation include the following:
(a) to preside at meetings of the owners corporation and the strata committee of the owners corporation,
(b) to make determinations as to quorums and procedural matters at meetings of the owners corporation and the strata committee of the owners corporation.
Although the OC can decide to delegate various jobs to the strata manager the Secretary is the person who should be assisting the strata manager and should be their ‘go to’ contact. NB: The Owners Corporation and its executive committee can still carry out its duties even if it has delegated them to a strata manager. As Secretary you should not be deliberately ‘left out of the loop’.
Is the Chairperson taking over some of the role of the Secretary? If so then you might need to remind him that if he wishes to take on the functions of the Secretary then he can always step aside from his position as Chairperson and run for the position of Secretary.
In contrast to the Chairperson’s functions, under the SSMA 2015 the Secretary’s functions are as follows:
43 Functions of secretary of owners corporation
The functions of a secretary of an owners corporation include the following:
(a) to prepare and distribute minutes of meetings of the owners corporation and submit a motion for confirmation of the minutes of any meeting of the owners corporation at the next such meeting,
(b) to give on behalf of the owners corporation and the strata committee of the owners corporation notices required to be given under this Act,
(c) to maintain the strata roll,
(d) to enable the inspection of documents on behalf of the owners corporation in accordance with this Act,
(e) to answer communications addressed to the owners corporation,
(f) to convene meetings of the strata committee and (apart from its first annual general meeting) of the owners corporation,
(g) to attend to matters of an administrative or secretarial nature in connection with the exercise of functions by the owners corporation or the strata committee of the owners corporation,
(h) any other functions conferred on the secretary under any other Act or law.
The duty of the strata committee is as follows:
37 Duty of members of strata committee
It is the duty of each member of a strata committee of an owners corporation to carry out his or her functions for the benefit, so far as practicable, of the owners corporation and with due care and diligence.
Note : Section 260 provides protection from personal liability for members of strata committees who act in good faith.
Issue 2 – Lack of strata committee meetings.
Strata committee meetings are convened by the secretary of the OC at any time, or by any other member of the strata committee, if requested to do so by 1/3 of the members of the committee or by a previous resolution of the Strata Committee itself.
Strata committee meetings are vital to the running of the scheme and it is arguable that the [s37] Duties of a strata committee are not being satisfactorily complied with if no strata committee meetings are being held.
If you believe that your strata scheme would benefit from more regular meetings and you believe that the non-resident committee members would not be able to attend more frequent meetings then you could raise a Motion for the Agenda at your upcoming AGM allowing the non-resident committee members to be present at the meeting without actually being physically present. This is permitted under the Act. See Sections 10 and 12 from this link: https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma2015242/sch2.html
A suggestion for the wording of your Motion (i.e. your Resolution) is below, but check this with your strata manager:
Resolution: “Permitted means of voting” and “person present”
That any member of the strata committee be deemed to be a person present at a strata committee meeting in order to facilitate a quorum and in order to vote at a strata committee meeting if their attendance is via Skype, telephone, or via teleconferencing, or similar (SSMA 2015 Schedule 2). (Vote by Ordinary Resolution)
Your Motion will need to be submitted prior to the AGM being sent out to owners, so do it quickly.
How to convene a meeting is here:
39 Convening meetings
(1) The secretary of the owners corporation may convene a meeting of the strata committee at any time.
(2) The secretary of the owners corporation, or any other member of the strata committee, must convene a meeting of the committee if requested to do so by at least one-third of the members of the committee.
(3) The meeting must be held:
(a) in the case of a large strata scheme, not later than 28 days after the request is made, or
(b) in the case of any other strata scheme, not later than 14 days after the request is made.
Issue 3: Balcony wall and ceiling cleaning.
You may obtain a quote for the washing of the balcony walls and ceilings and submit a Motion (i.e. a Resolution) to the next AGM to be voted on by an Ordinary Vote. If you need help wording the Motion then the strata manager should be able to assist you. Your Motion will need to be submitted prior to the AGM being sent out to owners, so do it quickly.
Issue 4: Proxies to the Chairperson.
Proxy voting rules have changed recently. Please ask your strata manager how many proxy votes are permitted in your scheme, and ensure that your Chairperson does not exceed the correct number.
fight4justice – If I was in your situation I would immediately contact your local council and ask for their assessment of the situation. However, you may be disappointed by their reply.
From the NSW Government Companion Animals Act 1998 No 8720 Dogs defecating in public place(1) If a dog defecates in a public place:
(a) the owner of the dog, or
(b) if the owner is not present at the relevant time and another person who is of or above the age of 16 years is in charge of the dog at that time—that other person,
must immediately remove the dog’s faeces and properly dispose of them.
Maximum penalty: 8 penalty units.If the lady picks up the dog ‘poo’ then she may be abiding by the laws.
As a long shot if the dog urine is substantially killing the grass on the Council property or is causing a health hazard then it may be considered a ‘nuisance dog’ under [s(e) and s(f)] of the NSW Government Companion Animals Act 1998 No 87:
Division 1A Nuisance dogs32A Nuisance dogs(1) For the purposes of this section, a dog is a nuisance if the dog:
(a) is habitually at large, or
(b) makes a noise, by barking or otherwise, that persistently occurs or continues to such a degree or extent that it unreasonably interferes with the peace, comfort or convenience of any person in any other premises, or
(c) repeatedly defecates on property (other than a public place) outside the property on which it is ordinarily kept, or
(d) repeatedly runs at or chases any person, animal (other than vermin and, in relation to an animal, otherwise than in the course of droving, tending, working or protecting stock) or vehicle, or
(e) endangers the health of any person or animal (other than vermin and, in relation to an animal, otherwise than in the course of droving, tending, working or protecting stock), or
(f) repeatedly causes substantial damage to anything outside the property on which it is ordinarily kept.
The question that you appear to be asking is ‘are your concerns unreasonable?’ However, the question that you should be asking is ‘are the concerns (or lack of concerns) of the OC unreasonable?’
Your strata scheme’s individual policy and approval process for renovations will depend on its specific by-laws i.e. what conditions are imposed on renovations in the by-laws for the scheme?
If you personally believe that your OC by-laws are not sufficiently comprehensive then you have an option to change them by garnering support from 75% of the other owners and changing them at a General Meeting by Special Resolution. An OC must not impose unreasonable by-law conditions.
Renovation 1: A request for a final building certification is not unreasonable if this requirement is included in the existing by-laws. However, it would be unreasonable to ask an individual owner to provide a final building certification if the by-laws do not currently require it. This may have the appearance of placing more onerous conditions on just one owner.
Renovation 2: This renovation would be deemed to be a major renovation if waterproofing was required. The renovation works required a Special Resolution which was obtained.
Should you be critical of the strata manager for putting forward a ‘minimalist’ motion? The strata manager does not make the by-laws. If there is no requirement in your scheme’s by-laws to submit additional information then there is no reason to be critical of the strata manager.
From https://www.wolterskluwercentral.com.au/legal/property-law/new-strata-laws-make-renovating-easier-strata-owners/
- The owners corporation is entitled to require satisfactory details of the work, the contractor / builder, removal of debris and proposed dates before giving approval – and the approval can be given subject to reasonable conditions (the same as for minor renovations).
- Reasonable conditions would include that a licensed tradesperson be engaged, with appropriate insurance, a structural engineer’s certificate, a waterproofer’s certificate, and that a by-law be registered (all at the owner’s cost). The conditions would normally include an obligation that the strata owner maintains any items installed in good repair, at the owner’s cost.
- An appeal lies to the Tribunal (NCAT) if the owners corporation unreasonably refuses to approve the work or imposes unreasonable conditions.
- The new Strata Laws do not invalidate current by-laws in place which deal with major works. Essentially, the new Strata Laws remain the same as the former Strata Laws.
I was incorrect when I stated previously that “If there are no signatures and no completion of the Attestation then the document with the seal is unlikely to be legal.”
It appears from the following extract from a 2009 article that: “Affixing the common seal of the Owners Corporation (“OC”) to any document turns that paper into evidence – evidence to the world the OC approves of and will be bound by whatever appears above the seal.”
https://www.ocn.org.au/sites/default/files/090805%20The%20Common%20Seal.pdf
If there has been a genuine mistake made and the Common Seal has been affixed to a document without the proper authorisation by the OC then this matter should be corrected ASAP.
Incorrect and/or fraudulent use of the Common Seal breaches both the SSMA 2015, and the Corporations Act 2001. Penalties may apply.
Perhaps you should phone the Office of Fair Trading and explain your dilemma and ask for their advice.
In my opinion, approving the document would require a Resolution at a General meeting with the vote on the Resolution (either Ordinary or Special) to be according to the original subject matter of the document.
In the interests of transparency (and in case this ever needs to be brought to the attention of the Tribunal), Explanatory material may need to be added to the resolution that explains the mistake.
From reading many Tribunal decisions over the years, the Tribunal recognises that mistakes can and do happen from time to time, however the Tribunal is unlikely to compound the mistake in the manner that you suggest.
The remainder is a bit too vague to comment on.
Onyx – This is a complicated legal matter therefore it would be wise to seek legal advice.
Restrictive covenants can be binding and can override local environmental plans, therefore, by extrapolation, the same could apply to by-laws.
For more information see here: https://elringtons.com.au/2011/09/restrictive-covenants/
I have read other articles that claim that restrictive covenants are rarely enforceable past the first purchaser.
See the following case notes for an example of the power of a restrictive covenant:
JC – There are many answers to your questions in the following articles.
From my investigations it appears that the use of the common seal must be witnessed, however there is an allowance for non fraudulent mistakes in some circumstances. If there are no signatures and no completion of the Attestation then the document with the seal is unlikely to be legal.
https://www.netstrata.com.au/the-common-seal-explained-and-wont-be-found-at-sea-world/
Relevant sections in the SSMA 2015 are: sections 272, 273 of
https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma2015242/index.html#s272
In NSW there is an additional requirement from the NSW Govt Registrar General for consent attestation to be confirmed through the completion of Form 23:
https://rgdirections.lpi.nsw.gov.au/strata_schemes/approved_forms/approved_form_23
https://rgdirections.lpi.nsw.gov.au/__data/assets/pdf_file/0019/215902/AF23_Attestation.pdf
Fey Knows – We all work within the boundaries of the Legislation. Sometimes it is best to get involved in the running of the Committee if you wish to make it work better.
As for your comment about your upstairs neighbour – if you have proof (i.e. photographs, dates, times etc) that the upstairs neighbour is breaching the by-laws then you should write to the Committee and advise them of the breaches before the upcoming meeting.
In your correspondence – ask that the Committee write to the upstairs neighbour and remind them of their obligations to comply with the by-laws. Your correspondence should be tabled at the meeting. The Committee should take action as a result of your letter and/or email. Attend the meeting, if you can, to ensure that this matter is dealt with.
From the Office of Fair Trading:
“All owners and occupiers in a strata scheme, including tenants, are legally obliged to comply with the by-laws of the scheme.”
“If an owner or resident breaches a by-law, the strata committee can first contact the resident to advise of the breach, and ask that they stop the conduct that is causing the breach.
If it continues, the owners corporation can serve a ‘Notice to Comply with a By-Law’ on the person who is breaching it. This notice advises the resident of the breach and asks for the conduct to cease immediately. The notice can be a letter or email and must include the details of the by-law that has allegedly been breached. A copy of a Notice to Comply with a By-Law is available on the Fair Trading website.
The notice can’t be given without a majority vote at a meeting of the owners. However, the owners corporation can delegate their responsibility for issuing notices to comply to the strata committee or the strata managing agent. A notice must be issued before any further action can be taken to enforce the by-laws.”
Fey Knows – The Act allows for this eventuality in Sections 31, 41 and 45.
If this matter concerns you then you have every right to attend the upcoming meeting and express your interest in becoming the new replacement Committee member.