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Another issue, that might be relevant, is the insurance risk if an accident occurs. Most strata buildings include insurance cover for owners, and committee members doing voluntary work on the building and grounds. But the voluntary work must be specifically authorised by the Owners Corporation, in the minutes of a strata committee or general meeting. If not so authorised, then the building’s insurance is unlikely to cover you if you get injured doing the landscaping work (which is a high risk area). Secondly, this only work for “voluntary work” which must be unpaid. If you were charging the Owners Corporation for the work, then it’s not voluntary.
So you should tender for the work, just as the new gardener did. This will require you to have the appropriate insurance, and business details in order. Do you have the appropriate insurance and other requirements? If not, then the Owners Corporation did the right thing by engaging another gardener, who the strata manager would have vetted. As an alternative, why not join the strata committee at the next AGM (or ask to assist them), and then become the committee member supervising the work of the gardener? But not to actually touch the garden, unless as a volunteer for no payment, and with the task then minuted in the strata records.
What you have described is not legal, in that, it is mandatory to have a strata committee, and for that committee to select a chairperson, a secretary and a treasurer. However, once it does this, the committee can delegate (nearly) all of its functions to the strata manager, assuming also that the strata manager’s contract with the Owners Corporation allows this.
Nevertheless the strata committee is legally liable for anything that the Owners Corporation does, and they can be sued (and held financially accountable) for any misbehavior that the Owners Corporation gets up to, or allows its strata manager to get away with.
If, as you say, the Owners Corporation at its AGM voted down the election of a strata committee, and is relying on its strata manager to do the necessary work to run the Owners Corporation, then this is at odds with strata law. So, you should check out the actual situation. Read the agenda and minutes of the building’s AGM, to determine what the situation actually is. Ask the strata manager to advise you of the makeup of the strata committee and its office holders.
And if there is no strata committee, you have 2 fairly easy choices – you should lodge a complaint with the Dept of Fair Trading, firstly that the Owners Corporation is not following strata law, and secondly with the licencing section of the Dept that the Strata Manager is not following strata law, and is representing a building without a legally sanctioned strata committee. The Strata Manager should have cancelled their management contract with the building, if the owners refused to follow the law.
However, there are many strata buildings where the owners do not wish to follow the law, and so the strata manager may step in and run things, and the Dept just assumes that this is the best of a bad set of options. This situation is likely to increase, once compulsory training of strata committees comes into force, which will discourage owners even more than now from being involved in building management. Strata law does not handle buildings where the owners refuse to manage the owners corporation, and owners are less likely than ever to want to get involved with the management of their buildings, which is a demanding and voluntary role.
If this situation really concerns you, discuss this with a strata lawyer. You would probably have a case to appoint a compulsory strata manager, which ironically, is the same situation you are currently in, although you and the other owners would have a say in who that manager would be.
I think there is a bit of a misunderstanding that discussions at a strata committee count. Of course, in a well run strata building, the owners are engaged with finding the best way to fix problems. But strata committees (and the owners corporation they represent) are governed by motions put to the meeting in the published agenda, the voting outcome, and the minutes published afterwards that disclose the result of the voting.
The agenda and minutes are published and circulated to all owners, and are also part of the “strata search” that sensible prospective buyers will obtain before purchasing in the building. If you building is not running this way, then it is in trouble, and not following strata law, which is a while other issue.
So you have to make your case in the agenda, by submitting a detailed motion to the SC. Then at the meeting, make your case and vote in favour. You have to set out the water proofing issues, as you understand them, making sure you don’t speculate, and are accurate. If the problems are uncertain, then you also can put a motion in the Agenda to investigate and report back. If the strata committee majority don’t support you, then you put the same motions (or versions improved from seeing the response the committee takes) to the Annual General Meeting. Also, put a motion on the agenda, if your concerns seem accurate, to request the SC confirms that the building’s insurer has been notified of the problems and risk. You can arrange to call these meetings, to speed up things, if necessary.
Unresolved water proofing issues, are a red flag to purchasers, and so Units in your building will be un-sellable until these problems are resolved.
Also draw the attention of the water proofing problems to the building’s investors. Bannermans law firm, have a series of articles about section 106(5) of the Strata Schemes Management Act.
See => https://www.bannermans.com.au/?sfid=3133&_sf_s=106(5)
Briefly, if an investor has a loss because of a failure by the Owners Corporation to maintain and repair its common property, then the investor can claim compensation to recover that loss, as well as legal expenses etc, (now) up to 6 years (previously 2) after that loss occurred. Owners Corporations have had to pay hundreds of thousands of dollars in compensation from that. Any building that ignores repairing its common property is opening its owners up to major expenses in the future, as well as making its Units unsellable.You need to make that case in the agenda and minutes of SC and general meetings, so all the owners become aware of the real and significant risks they are running.
This is not settled law. The strata lawyer Amanda Farmer has a view that if an unfinancial owner enters into a “payment plan”, which is specified in the Act that has been recently amended to make it more reasonable for owners to take up, then they are able to vote in general meetings. That would probably require the payment plan to have been approved, and the owner actually to be following it, so you can’t turn up at a general meeting being unfinancial and having applied for a plan the day before, and hope to vote. This interpretation is controversial, but has a reasonable chance of being accepted, since the government is trying to get unfinancial owners to make payment plans, and the advantage of being able to vote and participate in strata, by making and following payment plans would be in agreement with the government’s aims, from these reforms.
I’m not sure that that is? More background is needed…
It’s a question of the real life effect of that fault. The NCAT, should this deficiency be taken there, will look at the real world effects, and will probably be willing to disallow a decision on a technicality. So, did the missing documents change the result, and can you prove that?
The obvious solution is to re-run the meeting, at a later date with all the correct material. So, consider whether the result would be different at that time? If no, then it’s a waste of resources.
A more practical solution, is to include a mention of the problem in the minutes, so all the owners can see what was missed and made their own decision about whether the issue deserves further attention. So, at the next general meeting, when the motion to confirm the minutes of the previous meeting is put, ensure that the fault is described. It is better to write to the strata manager / SC secretary, requesting that the minutes describe the documents that were omitted, and how they were later provided, and that the result was achieved in that situation. At that meeting you can discuss with the members if that problem is worth revisiting…
I call bullshit on this. The election of the strata committee is carried out at the AGM, when the number of nominees are more than the number of committee members, and that number is decided at the meeting in the adjacent motion.
It is inconvenient to have an election, and it slows the meeting down. But there are a number of strategies to handle this.
First, the motion to decide the number of committee members can set the number as the number of nominations. If the two numbers match, then every nominee goes on the committee. The NSW legislation does limit the membership to 9 owners, but usually committees are less that this. So, revisit the committee membership number, and all the nominees can be on the committee.
Otherwise, take a pad of paper and a bunch of pencils to the meeting, and suggest, lets vote now – and hand everyone with a vote (ie include proxy holders) a sheet, to write down the committee members they want on the SC. Collect the sheets, and watch the strata manager tally the votes, and declare the winners.
Or suggest that the owners vote with a show of hands, as each nominated person’s name is read out. Two hands if the person is holding a proxy. Secret ballots are not required, and this is a very common approach.
The strata manager’s approach of sending out and later collecting ballot papers is nonsense. The strata legislation assumes that the election of a strata committee occurs at the AGM meeting itself, with the office holders being elected from within the committee at the strata committee meeting held immedately afterwards.
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At an AGM the owners can restrict the strata committee’s actions, such as limiting the amount they can spend without the approval of the owners at a general meeting, under section 36(3)(b) of the Strata Schemes Management Act. Namely, ” a decision on any matter or type of matter that the owners corporation has determined in general meeting is to be decided only by the owners corporation in general meeting. ”
So you can propose motions to be voted on at the general meeting, such as requiring any legal expenditure dealing with a by-law breach to be approved at a general meeting. But is the owners are apathetic, or angry at misbehavior, then they won’t attend, or may agree with the action.
Section 103 of the Act limits legal expenditure, in any case:
Urgent legal action Up to $15,000 Committee alone Non-urgent legal services Up to $3,000 Committee alone Pre-action legal advice No dollar cap Committee alone Recovery of unpaid levies No dollar cap Committee alone Anything else above thresholds Any amount General meeting resolution required And no, additional funds, are not permitted, other than the Administration and Capital Works funds, although a portion of funds can be earmarked for a purpose, I assume, and if the funds are collected via a special levy, then the purpose described for the levy must be followed.
A better approach is to distract the committee from obsessing about owner’s annoying behaviour to focus on real issues. At the meeting, analyse the budget, and suggest that the money wasted on inane by-law prosecution should be spent on cleaning, or repairing the roof, or not collected at all. You can suggest that the amount in the budget spent on legal matters, last year, be halved, due to the lack of success, and that money put to another more concrete use.
But if by-laws are not being followed, and that is causing real problems, then those issues have to be addressed. But if the past legal approach is not achieving progress, try other approaches. For example, parking issues might be fixed by installing a boom gate, or bollards, or improving signage.
The NSW model by-law reads:-
5 Keeping of animalsNote. Select option A or B. If no option is selected, option A will apply.
Option A
(1) An owner or occupier of a lot may keep an animal on the lot, if the owner or occupier gives the owners corporation written notice that it is being kept on the lot.
(2) The notice must be given not later than 14 days after the animal commences to be kept on the lot.
(3) If an owner or occupier of a lot keeps an animal on the lot, the owner or occupier must—
(a) keep the animal within the lot, and
(b) supervise the animal when it is on the common property, and
(c) take any action that is necessary to clean all areas of the lot or the common property that are soiled by the animal.
Option B
(1) An owner or occupier of a lot may keep an animal on the lot or the common property with the written approval of the owners corporation.
(2) The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property and must give an owner or occupier written reasons for any refusal to grant approval.
(3) If an owner or occupier of a lot keeps an animal on the lot, the owner or occupier must—
(a) keep the animal within the lot, and
(b) supervise the animal when it is on the common property, and
(c) take any action that is necessary to clean all areas of the lot or the common property that are soiled by the animal.
(4) An owner or occupier of a lot who keeps an assistance animal on the lot must, if required to do so by the owners corporation, provide evidence to the owners corporation demonstrating that the animal is an assistance animal as referred to in section 9 of the Disability Discrimination Act 1992 of the Commonwealth.
If your building’s pet by-law goes much beyond this wording, then it is very likely to be invalid. If your building has a pet by-law that is more restrictive, then at the next general meeting, ask the secretary of the strata committee to add a motion to amend the pet by-law and to substitute the model by-law wording, and to register that amended set.This saving prediction also presumes that the commission paid to insurance brokers will also be abolished. Hopefully, there will also be some attention paid to there only being 3 insurance companies that are insuring strata buildings. The plethora of insurance companies quoting for the mandatory insurance of an apartment building are mostly just subsidiaries of the 2 big insurers – and there is one independent insurer operating in the market.
The purpose of the minutes is to record the decisions taken at the general meeting, for each agenda item. If there are doubts about what happened, then the motion to confirm the minutes put to the next meeting can resolve any issues. The easiest approach is to look at the previous Agenda and mark which were approved, or not (if a motion does not receive sufficient votes (ie 51% for a normal resolution) then it fails. If the members who attended can’t recall the outcome, that mark consider those items as being deferred or voted down. Add any items that should be resolved to the following meeting’s agenda, with the explanatory note, that this item was brought forward from the previous meeting.
A general meeting is “valid” if there is a quorum present, and it begins and ends. If all the agenda item decisions are unknown, then consider the decision for each one as being deferred, and take this up at the next meeting.
Note that the minutes are in essence a list of the answers to the agenda items – basically “yes” “no” or “deferred”. The minutes should not record discussions, comments, questions etc – just the decisions taken. And later meetings can revisit those decisions and change them or reassert them.
You have not explained why you won’t attend yourself? But in any case, the age-old way of voting at an AGM if you cannot attend yourself is to appoint a proxy – which is another person who will attend in your stead. You will have been provided with the “Appointment of a Proxy” form with the AGM Agenda. It can be downloaded from the government Strata website too. Complete it, and submit it to the strata manager or secretary. You can appoint a friend to appear for you, or commonly, appoint another owner who is attending anyway. You can provide a list of votes for all the agenda items, as well, so the person you appoint votes as you want, or just give them your instructions about how to vote.
Keep in mind that you have to be financial (ie, your levies up to date) at the meeting, in order to vote.Another critical issue is that the engineer or architect who under the DB&P Act has overall responsibility for the project has to guarantee the outcome for 10 years. If a large strata building gets its windows replaced (say) and the DB&P law applies, the window company only guarantees the outcome for 6 years. Therefore the engineer or architect has to carry the risk that the new windows will have problems for the final 4 years. So they over-engineer the project – to minimise the risk that they will liable to repairing the failed water-proofing (say) 8 years after the project is completed. The resulting new windows will be very high quality, but will obviously cost a high amount to achieve this outcome, or more than may be needed and sensible!
In theory, changing the value of Unit Entitlements, can be done, but in practice, this is mostly impossible, because of the need to get all the owners to co-operate to arrange it (See NSW SSMA s.236). When you buy into a strata plan building, you have to consider that all the common property is owned and paid for by the Owners Corporation split among owners according to Unit Entitlements. Buying a town house in a mixed apartment/house development usually depresses the price of the town houses as a consequence.
The principle of strata law is that common property is owned collectively. So the argument that because you own a ground floor lot, you shouldn’t have to pay to maintain the lift, as one (common) example, does not fly.
However there are arrangements where costs can be shared more equally by creating exclusive use by-laws, which allocate some items of common property to a sub-set of owners, along with their costs. This is often done with mixed commercial/residential strata plans, where the escalators and air conditioning maintenance for the commercial lots is funded just by the commercial lots. So the owners, if the majority are interested, could investigate that, which will require a strata lawyer to draft the by-laws. However, again adopting this will require most owners to agree – in NSW it will require a special resolution (ie majority approval and less than a quarter voting against) and the written approval of all the lot owners affected by the by-law. So any owner disadvantaged by the by-law might be able to derail it. These arrangements are often made in new strata buildings, with the developer approving the excusive use by-laws at the start. These are then difficult to change for the same reasons, as the building ages.
You are correct that there is no specified “Notice” that must be used to provide the information listed in section 22(2). However part (3) requires that evidence be provided to back up the claim that the strata roll (which is the point of this) should be amended. Maintaining the building’s strata roll is an important task, and care must be taken to ensure that it is done properly. Therefore many strata managers ask that a form they devise be used, so this is done accurately and legally, as mistakes can have serious consequences. There is a court case that a strata manager messed up updating a strata roll, when a special levy was voted on at a general meeting – leading eventually to the strata manager paying a lot of money out of their own pockets, around $90k if I remember correctly (& I might not).
Now, a random person who emails a strata manager and asks that the roll be changed with information they give in their email, will set off alarms. When a lot is sold, the conveyancing solicitors usually do this task, and the strata manager will be able to check they are who they say they are, and the conveyancer will know exactly what documents and evidence to provide to back up the update.
So, because of the legal and financial risks arising from this task, it is to your advantage to get the roll updated correctly, and speedily. Keep in mind that if a special levy is struck, or an important decision is taken at a general meeting, and the roll does not reflect the correct ownership situation, there can be a big and expensive problem arising as a result that you will have to deal with.
So you should follow their procedure, and if by doing that, something goes wrong, they they will take the blame rather then you. But no, there’s no Form needed, so you should be able to negotiate some changes directly (eg, if the name in the roll is spelt wrongly, or your address changes). But a change of ownership of a lot should be done carefully, and the strata manager has to ensure that the information is accurate and properly recorded.
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