Forum Replies Created
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CatherineB – Unfortunately things can become very heated in strata schemes. Your situation and the situation of your EC appears to be extremely complex.
On the information that you have provided it is difficult to ascertain whether this is a Strata matter or a personal matter, or perhaps a mix of both. Only you and your committee can properly judge that.
If it is a Strata matter then the new legislation states that face to face mediation needs to be attempted by the Strata Committee before involving NCAT. This is called Internal Dispute Resolution.
I would speak to someone from NCAT about the best way to go about this. NCAT contact details are here:
https://www.ncat.nsw.gov.au/Pages/cc/ccd_contact_us.aspx
One option may be a meeting between yourself, the committee, and the individual concerned, and perhaps the strata manager to act as note taker if this is warranted …. but NCAT should be able to advise you what is best in your situation.
Part 12: Disputes and Tribunal Powers – sections 216 to 248 are the relevant sections of the new Act. See here:
https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma2015242/#p12
The assistance given on this site is generally only applicable to strata matters. If the matter is a personal matter then you may need to seek other legal avenues to address your problems. Defamation law can be very complicated and expensive so it is best to seek legal advice if you want to take this person to court.
The Defamation Act is here:
https://www.austlii.edu.au/au/legis/nsw/consol_act/da200599/
In the meantime I would avoid being alone with the person and try and have another committee member with you at all times when having any dealings with the person.
The relevant legislation is: Trees (Disputes Between Neighbours) Act 2006 https://www.austlii.edu.au/au/legis/nsw/consol_act/tbna2006363/
Relief is obtained through the Land and Environment Court. See here: https://www.lec.justice.nsw.gov.au/Pages/types_of_disputes/class_2/Trees-hedge-disputes-process/Treedisputes-helpfulmaterials/treedisputes_helpfulmaterial.aspx
See below for links to some information and explanation of how this legislation may assist you to resolve your problem:
https://www.diamondconway.com.au/tree-disputes-in-nsw/
https://www.legalanswers.sl.nsw.gov.au/guides/neighbours/trees.html
It is only legal if the Chairman has not breached any of the following obligations contained within SSMA 2015 Schedule 2: Section 18: Disclosure of pecuniary interest.
Failure to disclose a conflict is a breach of the Act punishable by a fine. [Edited by JT]
(1) If:
(a) a member of a strata committee has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting, and
(b) the interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter,
the member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the strata committee.
Maximum penalty: 10 penalty units.
(2) A disclosure by a member at a meeting of the strata committee that the member:
(a) is a member, or is in the employment, of a specified corporation or other body, or
(b) is a partner, or is in the employment, of a specified person, or
(c) has some other specified interest relating to a specified corporation or other body or to a specified person,
is a sufficient disclosure of the nature of the interest in any matter relating to that corporation or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under subclause (1).
(3) Particulars of any disclosure made under this clause must be recorded by the strata committee in a book kept for the purpose and that book must be open at all reasonable hours to inspection by any person on payment of the fee determined by the strata committee.
(4) After a member has disclosed the nature of an interest in any matter, the member must not, unless the strata committee otherwise determines:
(a) be present during any deliberation of the strata committee with respect to the matter, or
(b) take part in any decision of the strata committee with respect to the matter.
(5) For the purposes of the making of a determination by the strata committee under subclause (4), a member who has a direct or indirect pecuniary interest in a matter to which the disclosure relates must not:
(a) be present during any deliberation of the strata committee for the purpose of making the determination, or
(b) take part in the making by the strata committee of the determination.
(6) A contravention of this clause does not invalidate any decision of the strata committee.
(7) Without limiting subclause (1), a person has an indirect pecuniary interest in a matter if a person connected with the person has a direct interest in the matter.
Whether it is ethical is subjective. Many would consider it good practice and common sense not to nominate or serve on an a strata committee if you are getting paid or aiming to get paid by either the owners corporation or its individual members. If currently serving many would consider it appropriate to resign from the executive committee before providing any proposal for services.
The Chairperson’s behaviour may be legal (i.e. if they have fulfilled all of their obligations under the Act) but if you are personally concerned about whether the Chairperson’s actions are ethical then you can always seek support from other Lot owners and vote this person out of office at the next AGM.
Bonnie, there is no legislation preventing committee members from discussing quotes with other Lot owners.
The Strata Scheme Management Act (2015) has no code of conduct provision for strata committee members but does include a care and diligence clause.
Section 37: Duty of members of strata committee states:
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.
Ethical behaviour is something that should be encouraged in our dealings with others. Unfortunately not everyone has the same ethical standards. It is ethical for the committee to treat suppliers like they would expect to be treated themselves. Respect their work and efforts and their need to make some profit. Of course, the committee need to get the best prices and service for the owners corporation they represent, but they should not do this in an underhand way, or harm someone’s business unnecessarily.
If you believe that a committee member is not acting ethically then you have an option to vote them out of office at the next general meeting.
If you yourself are a committee member then a quiet word with the other member may be appropriate.
Momo – Without seeing the Strata Manager Agent Contract for your scheme I cannot make a proper assessment but ……
I have had another look at your issue and am wondering if the Strata Manager’s Contract was to set to expire at your AGM in October 2016 or whether the Contract was still on foot? Some Strata Manager Agent contracts are entered into for a fixed period of 3 years. Was yours?
If the Strata Manager Contract was still on foot at the 2016 AGM and was not expiring then the document you may have been asked to sign may have been a mere acknowledgement that you were the new Chairperson of the OC.
If the Contract was still on foot then there would have been no need to include an Agenda item about this issue in a General Meeting until the Contract was about to expire.
This issue all depends upon the terms of the Contract, including when it was entered into, its duration, and its expiry date. Please obtain a copy and read it carefully. You have a right to obtain a copy of this Contract.
Also read previous AGM Minutes which will also inform you about the date at which the Strata Manager Agent Contract commenced. This would show up as a resolution in the Minutes of the AGM.
The relevant legislation is: The Property, Stock and Business Agents Act (2002) Schedule 14: Clause 3: Renewal of agreement for fixed term.
and
Strata Scheme Management Act (2015) Section 50: Term of appointment of strata manager agents.
That being said….it could also be a scenario where dodgy deals went on, the possibility of which was alluded to in Jimmy T’s, Scotlandx, and Peter C’s comments above.
Any settlement reached at the end of a mediation is binding for those involved. The settlement may be made into an enforceable order by an Adjudicator where the parties agree. If no settlement is reached or an agreement breaks down, one side can apply for an order by an Adjudicator or the NSW Civil and Administrative Tribunal (NCAT).
……an extract from the NSW Dept of Fair Trade site.
I agree with scotlandx and Jimmy T.
One explanation may be that the 4th bedroom was created from a void such as a mezzanine within a pitched roof or within a high ceiling within the Lot. It could also have been created by the dividing of a larger room within the Lot.
First you would need to establish if the 4th bedroom is contained within the thick black line of the Lot boundary of the strata plan.
I would definitely ask questions of the current owner about this room i.e. when and how it was created, was it created legally etc. Don’t take their word for it however.
I would also undertake a thorough check of the strata scheme records to try and discover if a renovation has occurred, the extent of the renovation, and whether it was approved in accordance with any by-laws or DAs.
This document may of some assistance:
https://rgdirections.lpi.nsw.gov.au/__data/assets/pdf_file/0005/143078/Strata_Plans_Fast_Facts.pdf
You could ask your Solicitor to include a condition in the Contract that enables you to cancel the Contract without penalty if you are not satisfied with the outcome of your investigations about this bedroom within a certain time frame, such as 10 or 15 working days.
Jeff – Time is not on your side. To organise an EGM would take too long and the outcome that you want may be uncertain.
I would suggest that you and your Lot owners mount individual challenges to this DA.
The objection from your strata scheme would probably be considered as ONE objection even though there is more than one owner who is impacted. Often it is better to have as many objections lodged as possible … the weight of numbers can be a powerful tool. Many individual objections may be better than one!
Some suggestions on how to mount an objection to a DA (albeit it from Victoria … though still relevant) are here: https://www.coherence.com.au/media/How_to_make_an_effective_objection.pdf
A well put together objection that includes plans, photographs, sun and shade diagrams and well reasoned arguments would not necessarily need the assistance and expense of a lawyer.
For those Lot owners who do not have the time or inclination to mount an objection you may consider creating a pro forma objection submission which you give to the Lot owners and/or Tenants to sign. You may need to collect the completed pro forma submissions yourself to increase your chance of success, and ensure they are delivered within the appropriate time.
There is a lot of information about this topic on the internet including legal firms that specialise in this work.
A small sample is here:
https://www.strataconsultants.com.au/company-strata-title/
https://www.cml.com.au/conversion-from-company-title-to-strata-title-is-it-right-for-your-company/
Re dismissing a managing agent (from the Fair Trading NSW site):
A managing agent can only be dismissed, or have a delegation changed at a general meeting by a majority vote. Termination conditions, including payments, are detailed in the agent’s contract. Written notice of the decision must be given to that agent.
Ask for a copy of the Managing Agent Contract. The cost of breaking the Contract will be contained within the Contract.
Thanks Jimmy T.
It is useful to point out the differences between the roles of ‘strata manager’ and ‘building manager’. These terms and roles can sometimes be confusing.
In another Forum comment Jimmy T stated: It is OK for the owners to delegate the roles of chairman and secretary to the strata manager (for which he and she will be paid) and under the new laws building managers and letting agents can’t be on the committee unless they are also owners.
The differences are explained here:
There are three different types of BBQs: Gas; charcoal; and electric.
The smokiest BBQs are the charcoal BBQs, followed by gas (particularly if the drip tray is not cleaned), with electric BBQs producing barely any smoke at all.
There could be an argument for banning charcoal BBQs on balconies, and gas BBQs that use a smoker box ….. but there is no practical reason for banning electric BBQs.
Charcoal BBQs have the added problems of getting rid of the ash.
See here for suggestions for by law conditions that could be placed on gas BBQs on balconies to make them safer, although enforcement is always an issue:
https://www.elgas.com.au/blog/391-using-a-gas-bbq-on-a-unit-balcony
Electric BBQs are definitely best for city dwellers who are prohibited by fire regulations from using gas or charcoal grills. Many strata schemes only permit electric BBQs with all other BBQ types being banned.
Re children and common property: The model by law for children and common property is generally permissive except within certain parts of the common property. By laws created outside of this model may be more problematic if they are too prohibitive.
Restrictions on by laws can be found at Section 139:
(1) By-law cannot be unjust A by-law must not be harsh, unconscionable or oppressive.
Note : Any such by-law may be invalidated by the Tribunal (see section 150).
It will be interesting to see strata case law evolve to provide clarity and guidance to the legal meaning of “unjust” and ” harsh, unconscionable or oppressive“, and to see applicable examples of these terms
From Michael Teys and Block Lawyers provides some guidance:
A major reform that will no doubt lead to an increase in disputes is a requirement that by-laws must not be harsh, unconscionable or oppressive.
Owners corporations that seek to control too much of the behaviour of their owners will be caught by this provision. Although the words are well understood in the context of other law there will be shades of grey in their application to strata living.
By-laws that seek to regulate rather than prohibit behaviour will likely survive challenges on the basis that they are harsh, unconscionable or oppressive.
NCAT, an objective third party, can invalidate by-laws by utilising Section 150. An owner may make an application against an owner’s corporation.
(1) The Tribunal may, on the application of a person entitled to vote on the motion to make a by-law or the lessor of a leasehold strata scheme, make an order declaring a by-law to be invalid if the Tribunal considers that an owners corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive.
(2) The order, when recorded under section 246, has effect as if its terms were a by-law repealing the by-law declared invalid by the order (but subject to any relevant order made by a superior court).
(3) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order.
Thanks Jimmy T.
The Cancer Council Tool Kit about how to achieve smoke free apartment living is here:
From the Cancer Council Tool Kit is this:
Possible wording of a 100% smoke-free model by-law
An owner or resident of a lot, and any invitee of the owner or resident, must not smoke tobacco or any other substance on the lot or on common property
Please carefully read the model by-laws for Children Playing on Common Property both for existing schemes and new schemes.
The necessity of adult supervision of children playing on common property is only on common property comprising a laundry, car parking area or other area of possible danger or hazard to children.
Therefore all areas not within the categories stated do not require adult supervision. A lawned area of common property is unlikely to be a hazardous or dangerous to children therefore would not require adult supervision.
One of the significant changes to strata legislation in NSW is Section 139(1).
Section 139(1) provides:
A by-law must not be harsh, unconscionable or oppressive.
This is a new requirement. If a by-law is harsh, unconscionable or oppressive, then owners and occupiers may (depending upon its terms) be entitled to simply ignore it entirely, or at least ignore those parts that are harsh, unconscionable or oppressive.
By-laws aimed at reducing insurance premiums are now legally required to consider balancing that with the needs of their child residents.
‘As more children spend entire childhoods in strata schemes, we are going to have to think through these issues properly. We are going to have to stop using the simplistic assumption that so long as a rule has been voluntarily agreed to by the appropriate majority, it is a valid rule.
Like all property law, bylaws do not regulate land, they regulate people’s use of land, and amount to a power to regulate people’s lives. We cannot allow private citizens to regulate other people’s lives guided solely by their own self-interest. For children living in adult-dominated schemes, that is a recipe for disaster.’
Extract from ‘Strata laws should take care of children who call apartments home’ written by Dr Cathy Sherry who is a Senior Lecturer, Faculty of Law, UNSW and the author of Strata Title Property Rights: Private governance of multi-owned communities (Routledge, London, 2016).
Re Nuisance –
The legal definition of ‘nuisance’ is very different from the everyday meaning. For a noise to be construed as a nuisance’ it needs to be:
- frequent or persistent
- something a reasonable person with no particular sensitivity would be affected by.
- out of context or unanticipated (e.g. neighbours walking past your front door talking loudly may not count – even though it may be loud and intrusive)
- documented with substantial evidence of some sort