[Ray2U]

In NSW, it’s pretty straight forward.  If, for example, the owner is being reticent and the OC opts to carry out the work to rectify private private property then the OC is to pursue the costs.  And the NSW Strata Schemes Management Act allows a relatively straight forward method to recover the costs as a debt, so there’s no need for legal demands, etc.  You just put it on the ‘tab’, so to speak.

The hard part is gaining access to the lot if the owner refuses.  But that can be obtained by an order from NCAT.

The relevant section and subsections are:

120   Owners corporation may carry out work required to be carried out by others

(3) Work that is duty of owner or occupier to carry out If a person who is the owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in the strata scheme fails to carry out work in order to remedy a breach of a duty imposed by Part 8, the owners corporation may carry out the work and recover the cost of the work from that person.

(5) Recovery of costs as a debt The costs incurred by an owners corporation in carrying out any work referred to in this section may be recovered by the owners corporation as a debt.

I am not familiar with the TAS Strata Titles Act but I note that Tas ST Act states:

11. Rights and responsibilities for common property

(1) The body corporate may sue and be sued for rights and liabilities related to the common property as if the body corporate were the owner and occupier of the common property.
(2) If the body corporate grants rights of exclusive occupation of a particular part of the common property to another person, the body corporate’s rights and liabilities as occupier of that part of the common property are, while the right of exclusive occupation continues, vested in the other person.

So it appears that the exclusive occupier can be sued if he/she fails to maintain their portion of the common property

Also it seems that the body corporate can only raise funds for its parts of the common property.  That is, the body corporate cannot raise funds to maintain the exclusive occupier parts of the common property.  I note that the Tas ST Act states:

82. Fund for meeting financial obligations

(1) A body corporate must maintain a fund for the purpose of meeting its financial obligations under this Act.

So, in effect, section 82 limits the body corporate to only collecting monies for its obligations; not to meet the exclusive occupier’s obligations.

Again, I am not familiar with the TAS ST Act and the above is just to provide ‘food for thought’

Cheers

Ray

 

[Ray2U]

Hi

Your experience sounds very similar to what we are going through right now.

But what I have found is the Engineering Company’s people are not licenced to:

1. Produce a Building Condition Report which is the basis for what needs to be fixed.
   They called it an Engineering Inspection Report.
2. Produce a Regulated Design which is the basis for how the waterproofing is going to be fixed.
   They called it a Remediation Engineering Specification

If it’s the same company I would recommend that you check those documents carefully before the OC commits to spending money.

I’m okay if Jimmy T wants to share my email details with you so we can compare notes.

Cheers

[Ray2U]

Hi Jimmy,

I’m confused by the agenda item as it refers to two chairpersons:

1. The chair and
2. The strata chairperson

Given that there can only be one elected chairperson, I presume that the second chairperson is the strata manager. And I assume that they have been delegated chairperson authority and are now being presented as “an officer of the owners corporation” to obliquely comply with SSMA s 46, Payment of officers of the owners corporation.

But I may be missing something because I don’t have the full agenda or facts at hand.

Cheers

Ray

[Ray2U]

The Strata Management Schemes Regulation 2016 Part 11 (SMSR Part 11) COVID provisions were repealed years ago, making it illegal to attempt an AGM using them to justify “pre-meeting electronic voting.”

The SMSR currently mandates that an AGM be held ‘in person.’ For example, SMSR clause 9 outlines the “Election of strata committee” process, while SMSR clause 14A (a) states that “an election must not be determined by pre-meeting electronic voting.” Together, these clauses mandate that AGMs must be held either physically or “by electronic means while participating in the meeting” (SMSR clause 14(a)), and not solely through pre-meeting electronic voting.

I also note that the use of the term “strata chairperson” is likely a deceptive way to refer to the “strata manager,” who appears to be attempting to take a portion of the funds. This proposed action is potentially illegal and could be considered an attempt to obtain money fraudulently. I strongly recommend that you seek legal advice.

Good luck

Ray

[Ray2U]

On May 9th, 2024, Jimmy-T’s podcast “Lawyer in the Hot Seat, Part 2” featured a discussion on the Design and Building Practitioners Act. The guest, strata lawyer David Bannerman, highlighted the need to engage a professional engineer for remedial work certification. This sparked the suggestion that Fair Trading should consider a threshold to exempt relatively straightforward repairs from requiring the services of an engineer.

However, upon reviewing the Design and Building Practitioners Act, I noted section 31(2)(a), which states that engineering work is not considered professional engineering work if it is performed solely in accordance with a document outlining the procedure or criteria for carrying out the work without requiring advanced scientific calculations.

This provision suggests that reputable organisations can provide documents detailing repair methods, eliminating the need for professional engineering involvement. For instance, there’s a document called “Guide to Concrete Repair and Protection” for concrete spalling repairs, approved by the Standards Australia Council. Similarly, for balcony waterproofing, there’s a standard known as “Waterproofing Standard – AS 3740:2021” that outlines the repair and application procedures.

In summary, if an approved engineering standard or document covers a specific repair, then engaging a professional engineer may be unnecessary. This approach can facilitate a more efficient repair process and potentially reduce costs for strata owners.

On the other hand, if a repair requires complex calculations or specific expertise, engaging a professional engineer is essential.

 

[Ray2U]

To further my position on this matter;

On page 22 of the Regulatory Impact Statement and in seeking feedback on the Regulations, Fair Trading posed the question “17. Does clause 34 provide a fair and reasonable process for dealing with abandoned vehicles on the common property?”. Clearly Fair Trading wrote clause 34 with the intent to address the problem of abandoned vehicles. Refer: here – page 22

And in reply to Fair Trading’s question 17, the Law Society of NSW did make some comments but it did not question the inference or scope of the question; that is clause 34 is only dealing with abandoned vehicles. Refer: here

I fully acknowledge clause 34 is ambiguous as it stands. I initially interpreted it as you have and was elated that there may a better way to address the problem of parking. But the more I read the Act + Regs, the more I concluded that using clause 34 for parking problems wouldn’t stand up. If clause 34 didn’t reference ‘section 125 of the Act’ in the heading, people might be able to get away with it.

Anyway, a robust discussion is good.  Maybe via this forum, and with other input, we maybe able to get a clearer picture of what is the scope of clause 34.

Cheers

Ray

[Ray2U]

In item 5. Move it or lose it, it is asserted that “OCs will be able to move cars parked illegally on common property”. I disagree for the following reasons;

Clause 32 of the Regulations is titled: “34 Removal of motor vehicles: section 125 of Act”
Section 125 of the Act heading is: “125 Disposal of abandoned goods on common property”
Section 271 of the Act states: “The Governor may make regulations, not inconsistent with this Act”.

Therefore, in this case, the Regulations are limited to abandoned goods. That is, the Regulations cannot extend the scope of the Act to include cars that are merely illegally parked and that are not abandoned. Here the intent of the Act + Regs is clearly for abandoned goods. Even trying to apply the ‘letter of the law’ and with clause 32’s clear reference to s125, I can’t get away from ignoring s125’s heading and that clause 32 is only for abandoned cars.

It would have been better if the writer of the Regulations had made clause 32’s tile to have been “34 Removal of abandoned motor vehicles: section 125 of Act”. I fear many people will fall into the trap of reading clause 32 in isolation and believing it applies to all cars.

Cheers

Ray

[Ray2U]

Re: The comment of “If the committee won’t even put motion on the agenda, you can pursue them through the Tribunal”

In NSW there is nothing in the Act that provides for an owner to request any items be put onto a committee meeting agenda. Ironically the NSW Act is written this way to prevent harassment and bullying of committee members by a disgruntled owner. In NSW the committee may reasonably and legally ignore this type of request.

However and owner has a right to request that an item is included on the next general meeting agenda. The Act explicitly provides for this type of request and if the secretary refuses to comply then that is solid ground for an application to the Tribunal.

[Ray2U]

Considering the response from ‘isydowner’ (14/02/2016 – 9:02 am) to my last post it might be useful to others if I explain my philosophy on the relationship between the secretary and owners and that gives me strength to continue.

When I first started the job of secretary I thought that I was secretary to the owners.  But, inevitably, I ended up opposing some owners who had broken by-laws or who had done unauthorised alterations to the common property. etc.  That caused me a philosophical conflict. To get it clear in my head as to where the boundaries lie, I worked out (by reading the Strata Schemes Management Act) that I was secretary to the owners corporation and I did not work for the owners.  That is, the owners corporation and the owners are two separate entities.

To expand the point that the owners corporation and the owners are two separate entities, consider the following.  The owners corporation is a nebulous thing that does not have the power of thought, hearing, thinking or speaking.  So there are people who are “entitled to vote” at a meeting who are entrusted to make decisions on behalf of the owners corporation.  The people at a meeting will typically be a small minority of owners, some (who might not be owners) holding proxies, and some owners who can’t vote due to unpaid levies.  Even then, it is only the majority of that small group who decide what the owners corporation will do.  In a 20 lot scheme it could be as little as 3 people who agree and carry a meeting motion.

So, logically and legally, the owners corporation is not the owners but is most often represented by a small mixed group of people at a meeting.  This clarity of boundaries between owners corporation and owners has helped me retain my sanity when dealing with all owners, particularly the difficult.

For me and as secretary it is clear that I take instructions from owners corporation via the minutes of a meeting; nothing more.  I do not take instructions from owners.  If an owner wants something done then he/she has to persuade (via a general meeting) the owners corporation and have that requested agenda item judged by his/her peers.  And that process cuts the secretary out of any aggravated debate with a difficult owner.  Note that if I feel that an owner wants to do the right thing by the owners corporation I do all that I can to help him/her.  Conversely, if I think an owner is only self interested and shows little regard for the owners corporation, then I either ignore, or strongly oppose, him/her.

Even if I wanted to promote an issue, I have limited legal powers.  Outside of an executive committee meeting (ECM) the secretary may decide to call, or not to call, an ECM (there are some caveats).  Within an ECM, the secretary may decide to vote a particular way.  That’s the sum total of what I can decide on behalf of the owners corporation; nothing more.

Note that the Office of Fair Trading Strata Living booklet states: “No individual executive committee member can make a decision for the owners corporation”.  To expand that statement; outside of an ECM an executive committee does not exist.  Outside an ECM, all you have are individual executive committee members who are legally powerless to make decisions.  I know that’s not the way many secretaries and executive committees function, and that’s a big part of the problem.

But what about the powers of owners? (this next bit is important to understand)
Outside of an ECM, each and every owner has the same rights and responsibilities as any executive committee member.  Outside of an ECM an owner has access to the same resources, the same rights to put an agenda item on a general meeting, and the same general meeting voting rights as any elected executive committee member.  That is, if an owner is complaining that something is not being done, or should be done, then he/she is equally responsible.  And if the agenda item is defeated, then that’s democracy.

Again, because it’s important and it needs clarity. Outside of an ECM and considering the legal authority of the players; in effect what is often the case is there is an abusive owner demanding that another owner (the secretary) work hard to fix the abusive owner’s problem.  As the other owner, why would you tolerate that?

On the positive side and wherever possible I try to foster owner involvement. I get the owners to put their ‘wants’ on the next AGM agenda and I help them to provide the supporting detail (the owner talks to suppliers, gets quotes, and the like).  Some will assist and others will retort (in effect); “I don’t have time for that” and said as though I (the volunteer secretary) have nothing better to do.   I also make it clear to owners that if an item is put on the agenda and is not represented by them at the meeting then I will say “the owner is not here to give justification to the item” and I will oppose it. That is “no participate; no get” principle.

An example is in play as I write this;
Ryde Council recently changed how council cleanups are organised.  Now strata has to work with the council cleanup contractor to book in times, send notices to units, chase up the cleanup contractor, etc.  Not a trivial task.  

About 6 months ago a difficult owner came to me wanting me to organise a council cleanup.  I asked her to assist with organising the cleanup but she came back saying (in effect) “It’s all too hard” so I ignored the request.  Last week I had a tenant asking for the same thing, and I asked her if she would like to assist.  “Glad to help in any way” she replied.  The tenant will get the council cleanup, the owner did not.

All of the above approaches and philosophy has helped me to maintain the moral strength to weather the rubbish that some owners dish out, and all of the above is supported by the Strata Schemes Management Act.  

To conclude; you have the right to say to a difficult owner “I am secretary to the owners corporation.  I am not your secretary.  Sort your own problems out.”.   And to those who want to argue that “You are a representative of the owners”, then it’s like any political appointment.  You get to choose who and what you support.

[Ray2U]

I’ve been a strata secretary for over 10 years and I would advise you to, in effect, simply ignore difficult people; that is, wait a week or more and respond in a very brief way.  eg. “Thank you for your correspondence.  The matters raised will be reviewed”.   Read the email, then ignore.

Are you legally entitled to do that? Absolutely.

The only requirement is that the secretary has to “to answer communications addressed to the owners corporation” [SSMA 2015, s43(e)].  And if the mail barrage continues, it could be reasonably argued that ‘not to answer’ was the appropriate answer.

There is no provision for an owner to demand anything from any other person at any time except that an owner may:

• Attend an EC meeting but they cannot speak without permission [SSMA 2015, Sch 2, Cl 13].
• Along with other owners (25% total), request that a general meeting be held [SSMA 2015, s19(4)]
• Request that a motion be put on the next general meeting agenda [SSMA 2015, Sch 1, Cl 4(2) & (3)].  If the problem person is aware of his/her rights and inundates you with agenda request, just summarize them into one item (“the secretary must give effect to the requirement”).  Then at meeting the chairperson can limit speech time per person.

There are no other references that I can find that give further power to an owner.

Note that there is overriding protection for the EC members that, as long as you act in “good faith” you cannot be held liable for any failure to act  [SSMA 2015, s260].

If you read the Act (and I would encourage you to read and understand the above references), you will realise it has been written with the knowledge that there will always be difficult people who are going to harass the volunteer EC members.  In essence, the Act explicitly gives protection for volunteers as long as they are trying to do a good job for the benefit of the OC. 

Follow this link: https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma2015242/

Note: Although the 2015 Act is yet to have a proclaimed commencement date, the references given will (hopefully) last longer than if the current 1996 Act was referenced.

[Ray2U]

Thanks Jimmy for your kind words.

I guess I was thinking that if it is put through a democratic process where there is (say) 10 or more at the general meeting then it’s almost a certainty to be decided that only licensed tradespeople are used.  Probably the criteria would be made tighter (say, also make sure they are suitably insured) because often someone wants to add their piece to justify their attendance. Under this scenario it’s pretty much a done deal to get a good outcome for, in a large group, common sense often (not always) prevails.

BUT, and it’s a big ‘but’, if the meeting has only 4 or less participants then the democratic process can be quite irrational where one loud voice can sway the outcome. In this type of scenario the ‘democratic’ result might not be a reasonable one. Remember that about 30% of schemes are 2 lots so, at a rough guess, about 50% of all schemes would have 4 or less at a general meeting. Many have problems even getting a quorum. But still it’s worth a try and if it doesn’t work, go to plan B.

Cheers

Ray

[Ray2U]

As a pragmatic way forward (rather than using confrontational and threatening gestures) I would suggest putting an item on the next general meeting agenda. Something like:

That the Owners Corporation only ever use licensed tradespeople to carry out repairs or work on common property.

 

Then let the subject be debated in a forum where all owners can participate and democratically decide on what suits your scheme.  eg. Someone might suggest a minimum dollar cut-off point and amend the motion accordingly.  In most cases common sense ought to prevail in an open discussion. If that doesn’t work you may then consider using more forceful tactics.

 

Cheers

Ray

[Ray2U]

In reference to Jimmy's first point:

“A person must not immobilise a vehicle owned by any other person by means of wheel clamps … except with the consent of that other person” I think this exception allows a mate to secure his friend's car and not be in breach of the law. That is to get over someone saying 'You can't clamp someone else's car. Only the owner can clamp it'. I don't think you can imply consent therefore I doubt if an Owners Corporation can introduce a clamping by-law for it would be 'inconsistent' with the higher local council law; therefore illegal in itself.

 

But there's another section of the law that seems to have been introduced to enable the removal of dumped vehicles on your premises by enabling you to take possession and move it. It clearly states “A person who takes possession of a vehicle that has been left on premises” so there are circumstances where you can legally take possession of someone else's car. It also says you can't be sued for any damages that you might have caused to the vehicle [s651C]. The only criteria the law seems to need is 'a vehicle that has been left on premises'.

 

I wonder if this would allow you to legally stick a fork lift under the parked car and dump it out on the street? Or whether there's some other law somewhere that stipulates more criteria before taking possession?

Just a thought.

[Ray2U]

A practical example for Mr Strata;

A number of years ago a friend of mine (a member of the EC) complained to the other EC members about a neighbour making too much noise. The other EC members 'ran for cover' and gave no support. My friend, with my help, took the noisy neighbour to the CTTT. During the course of that action my friend had to move out of her home because the noise and intimidation was unbearable.

Eventually the CTTT did issue us an order restricting the neighbour against making noise. However he continued without abatement but my friend had moved out and none of the remaining residents or EC members would publicly speak out. It would have been a relatively simple matter to apply to the CTTT for a breach of a tribunal order, but none had the courage.

At an AGM, one of the EC members, himself frustrated and intimidated, said to my friend “I wished we had supported you”. Eventually the noisy neighbour moved out.

I was inexperienced at the time and what I am saying is that if I were to ever be put into that situation again, I'd put the EC on notice that they are accountable and they cannot hide from, or hide, issues. At the very least the EC has to formally meet and (like a jury) pass judgement. And they have to document their decision for all owners to see (via the minutes). The process laid out for the EC, via the Act, provides checks and balances for the complainant and the respondent but the community has to participate.

It helps me to think of different levels of governance from the International laws, Federal laws, State laws, Local Council laws and Strata by-laws. And then to ask, who is responsible and at what levels? The State (CTTT) has no responsibility with respect to creating and/or policing by-laws.

In a pedantic legal sense each set of by-laws is unique to each individual Strata Scheme. The Scheme is the authority that created the laws [s41(2)] and the Scheme is the authority responsible to police and impose its own laws on owners/tenants [s45]. The CTTT is used by the Scheme to impose a fine only after the EC has exhausted the limit of its power [s203]. The Scheme has to function correctly for the by-law system to work.

If the scheme is remiss in exercising its function then an individual can use the CTTT to encourage his/her strata community to get back on track [s138].

So I agree with Jimmy, it's about getting the community to work together and sometimes it requires the pain of taking the OC to the CTTT to achieve the longer term good.

To sum up by using a simple analogy; it's like Mum & Dad setting good and reasonable house rules but not enforcing them. And then Mum & Dad looking to the State to fix the resultant dysfunctional family.

[Ray2U]

Hi Jimmy

As I read Section 138(1)(a), it's about the OC failing to do a function, so I think it's separate from the issue of the breach of the by-law. Section 138(1)(a) mentions by-law but (again as I read it) it would be if the by-law conferred a function. For example; a by-law to issue security keys and to collect the deposit and you would be taking the OC to task for not having done that. For by-law cases the order sort from the CTTT would be for the OC to respond to the applicant or for the OC to issue a s45 notice.

 

For an owner to take another owner to the CTTT for the issue of not obeying a by-law, the owner generally has to apply under section 117 – Owners, occupiers and other persons not to create a nuisance.  Note that an individual has no grounds to use s45 in applying to the CTTT again supporting the notion that s45 is an exclusive OC function.

If I were going to the CTTT for the OC failing to do a function [s138(1)], I'd probably include an application for an order against the person breaking the by-law under this section 117. You're not going to be popular with anyone and you may as well 'go for broke'.

 

For others reading this blog, I would suggest you try this as a proforma letter to the OC;

Pursuant to s138(2) I apply to the Owners Corporation to exercise its function [s45] to enforce the parking/noise/washing/?? by-law. See the attached for supporting evidence which details the dates, times and identifies the responsible person. Should the infringement continue after a section 45 notice has been issued, I am prepared to document further evidence and provide sworn statement to the CTTT at a hearing.

 

Now if the OC fails to respond, you have solid grounds to go to the CTTT under s138 for the OC failing to respond. But if the OC informs you that, in their opinion there are not sufficient grounds to proceed with a s45 notice then it's a matter of opinion. This would make it (in effect) very similar to the Queensland situation where they can do the same thing (though QLD have a nice explicit piece of instruction for the EC).

In the case of the OC deciding not to proceed with a s45 notice, you could go to the CTTT to argue the OC failed to issue a s45 notice without proper reason but the decision would be based on if the OC were justified in rejecting your application.  Mostly I would expect the application to fail under these circumstances for the OC would have demonstrated due process in its administration of its by-laws.

 

I should put a disclaimer on all this for I have no legal qualifications.  I'm just well read in the Act.

[Author]

Replies