Forum Replies Created
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Fey Knows – The short answer is ‘Yes’. The SC has the authority under the Act to vote a new member on to the SC now that a position has become vacant.
Stratademocrat – Proxies are voting rights of an eligible voter (who cannot attend the upcoming meeting) transferred to another person who CAN attend the meeting. Proxy votes can be used at a committee meeting however the committee must decide this by resolution at a meeting prior to them being used. This is made clear in Schedule 2 Part 10(1).
As Jimmy T has already pointed out – a Strata Committee can decide by resolution how a vote can be be cast at a meeting. The SSMA states that a committee member does not need to be actually present to vote on a Motion (see the definition and relevant sections below) or to make up a Quorum.
Some alternative ways of voting when a person may be deemed to be ‘present’ even if they are not personally present are: (1) voting in writing, or (2) voting via social media, or (3) voting via teleconferencing, or (4) voting via video (e.g. Skype), or (5) proxy voting using the appropriate Form and process https://www.fairtrading.nsw.gov.au/mobile0c9a66/biz_res/ftweb/pdfs/About_us/Forms/Proxy_appointment.pdf.
The use of proxy votes as a means of voting at a committee meeting should have been decided at a meeting prior to March 8 meeting where proxy votes were used. If no resolution about the use of proxy votes had been made prior to the March 8 meeting then the use of proxy votes at the March 8 meeting would not have been valid, therefore the meeting would not have achieved a Quorum and the meeting would not have been valid.
The SSMA 2015 Definition: “person present” at a meeting includes a person who is not personally present but is able to vote at the meeting by another means specified under clause 28 of Schedule 1 or clause 10 of Schedule 2.
Schedule 2
9 Decisions at meetings
(1) Voting at meetings A motion put to a meeting is to be decided according to a majority of the number of the votes cast for and against the motion by the members present (other than any tenantmember) or in the manner set out in subclause (2). If there is only one member of the strata committee, the decision of the strata committee is the decision of that member.
10 Manner of voting
(1) A vote at a meeting by a person entitled to vote must be cast in person unless the strata committee, by resolution, determines that a vote may be cast by some other specified means.
Note : A person may be present at a meeting even if not actually at the meeting (see section 4 (1), definition of
“person present” ).(2) The regulations may make provision for or with respect to the following:
(a) the means of voting (other than in person) that may be adopted by a strata committee,
(b) without limiting paragraph (a), procedures for voting by such means,
(c) prohibiting the use of specified means of voting.
12 Quorum
(1) Quorum required for motion A motion submitted at a meeting of a strata committee must not be considered unless there is a quorum present to consider and vote on the motion.
(2) When quorum exists A quorum is present at a meeting only in the following circumstances:
(a) in the case of a strata committee which has only one member, if the member is present,
(b) in any other case, if not less than one-half of the persons entitled to vote on the motion are present.
(3) A person who has voted, or intends to vote, on a motion or at an election at a meeting by a permitted means other than a vote in person is taken to be present for the purposes of determining whether there is a quorum.
(4) The quorum for meetings of a strata committee is to be calculated on the basis of the number of members last determined by the owners corporation for the committee.
Fey Knows – Sir Humphrey is correct. The Agenda is correctly worded.
At this stage no one knows who will be the replacement committee member, or if indeed there will be a replacement committee member.
To add to SH’s comments: Did the departed Committee Member hold the position of Chairperson, Secretary, or Treasurer? If so the following Sections apply.
Strata committee to appoint officers
41 Strata committee to appoint officers
(1) The members of a strata committee must, at the first meeting of the strata committee after they assume office as members, appoint a chairperson, secretary and treasurer of the strata committee in accordance with this Act.
(2) The chairperson, secretary and treasurer of the strata committee are also, respectively, the chairperson, secretary and treasurer of the owners corporation.
(3) A person may be appointed to one or more of the offices of chairperson, secretary and treasurer.
(4) Nomination for election as an officer of the owners corporation may be made before or at the meeting at which the election is held.
(5) The regulations may provide for the procedures for nomination of officers of the strata committee.
Vacation of office by officer
45 Vacation of office by officer
(1) An officer of an owners corporation vacates office as an officer:
(a) if the person ceases to be a member of the strata committee, or
(b) on the receipt by the owners corporation from the person of written notice of the person’s resignation as an officer, or
(c) if another person is appointed by the strata committee to hold that office, or
(d) if the owners corporation, by special resolution, declares that the person’s office is vacated, or
(e) if the person dies.
(2) A strata committee is to appoint a person who is a member of the strata committee, or who is eligible to be a member of the strata committee, to fill a vacancy in the office of an officer of an owners corporation, other than a vacancy referred to in section 35 (1) (d). Any person so appointed holds office, subject to this section, for the balance of his or her predecessor’s term of office.
If an ordinary committee member’s position becomes vacant the following section applies i.e.[s35]. Note the use of the word ‘may‘ in [s35(2)]. This means that it is not mandatory to fill a vacant position of an ordinary committee member. However, it is mandatory to fill an Office bearer’s position. Note the word ‘is‘ in [s45(2)].
Vacation of office of elected member of strata committee
35 Vacation of office of elected member of strata committee
(1) An elected member of a strata committee vacates office as a member:
(a) if the person was eligible to be a member at the time of election and the person ceases to be so eligible (other than because the person is an unfinancial owner), or
(b) if the person was not an owner at the time of election or was a company nominee and the individual who nominated the person for election or the corporation for which the person is a company nominee ceases to be an owner or gives written notice to the owners corporation that the person’s office is vacated, or
(c) on the receipt by the owners corporation from the person of notice in writing of the person’s resignation as a member, or
(d) at the end of the next meeting at which a new strata committee is elected by the owners corporation, or
(e) if the owners corporation, in accordance with a special resolution, determines that the person’s office as a member is vacated, or
(f) if the person dies.
(2) A strata committee may appoint a person eligible for election as a member to fill a vacancy in the office of a member of the strata committee, other than a vacancy arising under subsection (1) (d) or a vacancy in the office of an officer of the owners corporation. Any person so appointed holds office, subject to this section, for the balance of his or her predecessor’s term of office.
Note : Section 45 (2) provides for the filling of vacancies in the office of members who are officers of the owners corporation.
If you are interested in becoming a Committee member and you fulfill the requirements then you can attend the meeting and have someone nominate you to fill the vacant position.
sealion – The numbers have been reduced from the previous Act, particularly in the areas of sale of common property, termination of a scheme etc. Owners no longer require unanimous support to end a strata scheme for the building to be sold or redeveloped.
Here are a few from the 2015 Act …..[ss 21(1), 74(5), 160(4)] but there may be more. Why are you asking?
sealion – Which State do you live in? There are several situations in the SSMA 2015 (NSW Legislation) that require a unanimous decision. Can you please provide more details about what you wish to change or apply for?
JonH – If I was you I would write a letter to the OC stating that you require a response to your previous questions within 14 days (or whatever time frame that you believe is reasonable) to enable this issue to be resolved, and to enable you to be able to finalise your renovation plans.
Under
of the SSMA 2015 the OC can carry out work on a Lot to rectify defects in existing common property pipe work etc but the Act does not state that the OC can install new pipe work in a Lot.If you want the pipe removed then the OC should be seeking alternative locations for the pipe, as was previously mentioned in a Report in 2014.
I would be advising the OC that the 3 month delay in their response has been unreasonable. I would also state that if you (a) do not receive a complete response from the OC within the time frame mentioned above, or (b) the response is unsatisfactory, then you will take this matter to mediation via the Office of Fair Trading, and then on to the NSW Civil and Administrative Tribunal (NCAT).
Be prepared to follow up on this. Your issue appears to be complex, and may require adjudication from an Authority that can Order an action(s) to be taken by the OC. The actions that you would be seeking would possibly be:
(1) the removal of the common property storm water pipe work from your Lot and the installation of the common property storm water pipe work on common property, and
(2) the making good of any damage to your Lot.
The Tribunal has the power to enforce this action under [s241].
241 Tribunal may prohibit or direct taking of specific actions
The Tribunal may order any person the subject of an application for an order to do or refrain from doing a specified act in relation to a strata scheme.
Roger – Without knowing what your particular by-laws are a door mat could offend a couple of by-laws such as: not leaving belongings on common property; not changing the appearance of a lot; not installing anything that could cause a safety hazard for the common property or the Lot; and not reducing the level of fire safety for the building.
However, common sense should apply.
Do a quick check of the building to see if other apartments also have a doormat. If you see other door mats then you should be OK. If you don’t …. then you may have a problem.
If your door mat was a safety issue then it will be noted on the next health and safety audit for your building and there would be a justifiable reason for you to be asked to remove it.
The following article provides a warning about trip hazards in strata:
https://lawyerschambers.com.au/owners-corporation-ordered-to-pay-150000-to-injured-lot-owner/
In addition to Jimmy T’s advice an owners corporation and its representatives must not seek legal advice or the provision of any other legal services or initiate legal action unless a resolution approving that action is passed at a general meeting of the owners corporation or unless the particular action is exempted under the Regulations.
STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 103
Legal services to be approved by general meeting
103 Legal services to be approved by general meeting
(1) An owners corporation or strata committee of an owners corporation must not obtain legal services for which any payment may be required unless a resolution approving the obtaining of those services is passed at a general meeting of the owners corporation.
(2) An owners corporation or strata committee may obtain legal services without obtaining approval under this section if:
(a) it is of the opinion that urgent action is necessary to protect the interests of the owners corporation, and
(b) the cost of the legal services does not exceed $10,000 or another amount prescribed by the regulations for the purposes of this subsection.
(3) Approval under this section is not required for the following:
(a) to obtain legal advice before commencing legal action,
(b) to take legal action to recover unpaid contributions, interest on unpaid contributions or related expenses,
(c) to take any other legal action prescribed by the regulations for the purposes of this section.
(4) A failure by an owners corporation or the strata committee of an owners corporation to obtain an approval under this section does not affect the validity of any proceedings or other legal action taken by the owners corporation.
(5) In this Division:
“legal services” includes obtaining legal advice and taking legal action.BONNIE L – Without a clearer understanding of what you are hoping to achieve, here is some information regarding access to the Strata Roll, and access to the Tenant.
As an owner you (or your representative) have a right to see the Strata Roll and ask to take a copy of the Roll, including names and addresses of Owners. There are no privacy laws over-riding the strata manager’s obligation to provide access for you to inspect the Roll. The owners corporation owns this information and the strata manager is only acting as their agent.
However, there is not an automatic right to inspect phone numbers and private email addresses. You also do not have an automatic right to have this information emailed to you by the strata manager.
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,
The Tenant can be contacted via the Owner, and/or the Tenant’s Real Estate Agent.
The Tenant has a right to quiet enjoyment. Clearly harassment of the Tenant is not permitted however it would be difficult to claim that a courteous and polite contact would be considered harassment. Common sense should prevail.
RESIDENTIAL TENANCIES ACT 1987 – SECT 22
Tenant’s right to quiet enjoyment
22 Tenant’s right to quiet enjoyment
(1) It is a term of every residential tenancy agreement that:
(a) the tenant shall have quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (for example, a head landlord) to that of the landlord, and
(b) the landlord or the landlord’s agent shall not interfere, or cause or permit any interference, with the reasonable peace, comfort or privacy of the tenant in using the residential premises.
(2) A landlord or a landlord’s agent under a residential tenancy agreement shall not, during the currency of the agreement, contravene or fail to comply with subsection (1).
Greg – From Bannermans Lawyers: Agency Agreements Expiry Deadline – 29 May 2017
Many agency agreements are due to expire on 29 May 2017 due to the operation of Section 50(1) and clause 14(1) of Schedule 3 of the Strata Schemes Management Act 2015.For those schemes the managers were to notify the owners corporation on or before 28 February 2017 that their agreements were due to expire on 29 May 2017.
Did your existing strata manager notify your OC on or before 28 Feb that their agreements were due to expire on 29 May?
It does not appear that 3 months notice is required as the Act seems to imply that the term of appointment “ends on the following day”. Therefore it appears that a new strata manager appointment can begin from that date. If I was you, however, I would clarify this with your intended new strata manager.
Clause 14(1) of Schedule 3 of SSMA 2015 states:
14 Terms of appointment of strata managing agents
(1) The term of appointment of a strata managing agent appointed or reappointed before the commencement of section 50 (1) of this Act, that is in force on that commencement, ends on the following day:
(a) if the agent was appointed or reappointed for a term (including any roll over or extension period) of 3 years or more, on the day that is 3 years after the term commenced or that is 6 months after the commencement of section 50 (1) of this Act, whichever is the later,
(b) if the agent was appointed or reappointed for a term (including any roll over or extension period) of less than 3 years, on the day that the term ends or that is 6 months after the commencement of section 50 (1) of this Act, whichever is the later.
NoPain – In my opinion you have a couple of avenues to explore: (1) The Lease conditions and whether they have been breached, and (2) the by-laws and whether they have been breached.
Try and obtain a copy of the Lease from your strata manager. Is there a By-law for the lease? What are the conditions of the lease? How long does the Lease have to run? Are there any conditions in the Lease between your Strata scheme and the gym owner regarding hours of operation, noise etc? Is the gym owner complying with the conditions?
NB: Did the acoustic technician suggest any ways that the gym owner could lessen the noise and/or vibrations from the thud of the dropped weights?
Also, obtain a copy of the by-laws from your strata manager. What By-laws does your scheme have regarding the issues of: noise, nuisance, behaviour of invitees etc?
The gym owner may be breaching various by-laws.
You stated: The strata committee are not interested in taking this further – many of them attend the gym and can’t understand our concerns.
In my opinion this is an unreasonable attitude for the SC to take, particularly given that you have proof from an acoustic technician that the noise level is excessive.
The fact that the majority of residents may not experience excessive noise does not necessarily mean that unreasonable noise has not occurred. If even one person has been subjected to an objectively unreasonable interference, a by-law breach may have occurred.
From case law, on the flip side of that argument is that the nuisance “needs to be an inconvenience that materially interferes with the ordinary notions of a ‘plain and sober’ person, and not merely the ‘elegant or dainty’ habits of the complainant”.
The SC has a duty to act on behalf of the OC. The OC is responsible for the management of the strata scheme and the common property for all owners in the strata scheme [s9]. The leased area would be deemed to be common property.
If an SC has good reason to believe that a by-law has been breached, it would arguably be unreasonable not to take action to pursue the matter if the breach is material or is adversely affecting any owner or occupier. There is a requirement to comply with the by-laws
. A notice to comply with the by-law must be issued by the OC rather than the SC. The notice to comply must be decided by the OC at a General Meeting.If the SC are unwilling to listen to your concerns about the gym regarding the possible breach of the lease conditions, or a possible breach of the by-laws with regard to noise, nuisance, behaviour of invitees etc then you could seek mediation through the Office of Fair Trading. Other steps can be taken after that.
Agreed, Sir Humphrey. I guess the support for the option that you raised would come down to whether there were a majority of owner occupiers in the strata scheme, or a majority of tenants.
Being that electricity is metered individually and is therefore usually a cost born by the occupant of a Lot, a non-resident owner would probably be less enthusiastic about paying for the installation of solar panels that a tenant would be getting the benefit from.
Weetbix – I suggest that you or your SM phone SUU as soon as possible. SUU appears to cover accidental damage.
SUU will advise you as to whether you can proceed with the repair immediately based on the quote that you have already obtained. Being that there is a possible security issue for your Scheme with the door being stuck in the open position then SUU will probably want you to move quickly.
Have the PICA group outlined exactly what costs they are adjusting to?
Pedant referred to a letter from PICA that stated that the abnormal fee was “for the cost of them upgrading their systems to comply with the new legislation”.
Can PICA be pressed to outline exactly what they are?
If the abnormal PICA charge is merely for a computer upgrade for their businesses then that is something that should be absorbed by the business without any additional impost on their clients.
Kenny R – My thoughts are: The OC owns the roof as common property. The OC may consider purchasing and installing their own panels to provide electricity for the common property i.e. stairs, lifts etc. The OC would not own the solar panels that provide electricity for the individual Lots.
The OC does not need to involve itself in any bulk purchase of these units as this is a matter for the individual owners should they wish to band together. The Lot owners would purchase their own panels, not the OC. Not every Lot owner may wish to participate.
If a Lot owner wishes to install a solar panel then they should seek permission to place their panels on the OC common property roof. This must be done BEFORE they purchase the solar panels.
Permission could be granted by the OC via the issuing of a [s112] license, or a [s113] lease, to use the common property. This permission is granted via a Special Resolution at a General Meeting.
I do not believe that approval for the panels could come from [s108] as the purpose of the solar panels is not to ‘enhance the common property’.
108 Changes to common property
(1) Procedure for authorising changes to common property An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.
The conditions for the grant of a license or a lease by the OC to the Lot owner would need to be well thought out and should cover every possible eventuality such as damage to the roof etc. This is to protect the interests of the OC.
112 Owners corporation may grant licence to use common property
(1) An owners corporation may grant a licence to an owner or occupier of a lot in the strata scheme or another person to use common property in a particular manner or for particular purposes if the owners corporation has approved the granting of the licence by a special resolution.
(2) A licence may be granted subject to terms and conditions.
Note : Division 3 of Part 7 enables owners corporations to make common property rights by-laws granting exclusive use rights and special privileges (including licences) in relation to common property.
(3) Without limiting this section, a licence may be granted under an agreement with the local council for a strata parking area under section 650A of the Local Government Act 1993 .
113 Agreement for payment to owner of consideration on transfer or lease of common property
An owners corporation may, in accordance with a special resolution, make an agreement with an owner for the payment to the owner of:
(a) the whole or any part of the consideration under any transaction proposed to be entered into by the owners corporation under Division 6 of Part 2 of the Strata Schemes Development Act 2015 , or
(b) any money payable to the owners corporation under a common property rights by-law.
A Lease, or Licence, and a Special By-law would need to be created for the solar panels. An example of a By-law is here, however, the wording cannot be relied upon as being the best possible wording available:
https://greenstrata.com.au/sites/default/files/documents/WallisView%20Special%20By-Law.pdf
There may be other sections in the SSMA 2015 which may provide assistance and guidance for your scheme.