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You just need to be sure that the relevant owners have consented to the by-laws, otherwise they aren’t enforceable. That is – where you introduce a by-law that applies to something that is already there, the current owner has to specifically consent to it.
An omnibus by-law is one exclusive use by-law that covers all of the owners, and it then specifies the works/items to which it applies. So you have the one by-law and you say for Lot X this covers the air conditioner, for Lot Y this covers the hot water system etc. It can be less messy than having multiple special by-laws.
The owners of the items may take responsibility for them but legally they aren’t responsible, and it doesn’t bind successors in title, because there is no by-law.
I suggest you get a lawyer to help you.
Are you saying that you want to provide that the hot water tank and air conditioner units that have been installed without approval are ok?
The question then is – do you want to persuade the owners of the relevant lots responsible for those items going forward? This would require a special by-law for the respective items whereby each owner agrees that they are responsible for them. Each by-law would require a special resolution of the OC (you can also do an omnibus by-law)
The alternative is to acknowledge that they form part of the common property but as things stand, assuming there are no by-laws, that is the legal position anyway. I would suggest that is not a good idea. However, if they do form part of the common property the OC can remove them, which is a good bargaining chip to have when you are looking at persuading the relevant owners to agree to a by-law.
This is how it works:
– the owners must appoint a strata committee – section 29
– if there is no strata committee, the strata manager can exercise any functions conferred on him/her – section 29(4) – refer below, the strata manager can only do that if the agreement provides for it
– the strata committee must appoint officers – the Chair, Secretary and Treasurer – section 41
– a person can be appointed to one or more of the offices of Chair, Secretary and Treasurer – section 41(3)
– the strata manager can exercise the functions of the officers where the agreement with the strata manager provides that the strata manager has and may exercise those functions – section 54(1)
– where the agreement provides that the strata manager can exercise the functions of the officers, the officers can also exercise those functions – section 54(2)
– if a strata manager has been delegated a function by the OC and a breach of the duty by the OC would constitute an offence under the Act, the agent is guilty of an offence under that provision instead of the OC – section 56
Am not sure where Lady Penelope got the 100 owners from, I am going off the NSW legislation?
In your case prideaux I would be asking the following questions:
– at each AGM is there a resolution to determine the number of members of the strata committee and elect the strata committee?
– is there a subsequent resolution for the strata committee to elect office holders? (this would be at a Strata Committee meeting)
– does the agreement with the strata manager provide that the strata manager can exercise the functions of the strata committee/office holders?
– re the strata manager agreement, what is the term of that agreement, when was it last renewed, have there been resolutions to renew it at annual general meetings?
– did the strata manager provide the OC with a revised agreement subsequent to the introduction of the new Act?
I was just kidding around, but how did they have a quorum for all those years when no-one turned up but them?
You are not an owner so you don’t have capacity/standing to seek approval.
The only way you could do it is ask the current owner to lodge the request, which would include some sort of notation that you are taking on the request upon settlement.
Note if any by-law is needed then the owners have to approve that, not the Committee.
Ok – but what about before the new Act? ????
It’s illegal – a garage is not a habitable space.
Save time and effort and call the Council.
If an owner adds it, then the owner should be responsible for it and a by-law implemented accordingly.
No there aren’t any specific provisions in that regard. As a general principle if someone asks that their vote for, against or abstention be noted in the minutes, then it should be recorded.
Same with a poll vote, it doesn’t make any difference other than the way the vote is calculated.
The answer is simple, there is no by-law because there is no by-law, you acted in reliance on what you were told at the time. Things have changed a lot since 2005.
As you said it is a moot point now, so perhaps suggest to the Chair that what happened or didn’t happen 12 years ago isn’t relevant.
The wording of section 41 conflicts with itself, subsections (1) and (3) use the word “appoint”, subsection (4) refers to “election”. There are a few mistakes/holes in the legislation, think this is one of them.
As a general governance issue, the constitutions of companies generally provide that the Chair of the Board is elected/chosen by the Board. While the process for determining who is on the Board will vary depending on the type of company, ranging from publicly listed companies to companies limited by guarantee, this reflects the general principle that the Directors are best placed to determine who amongst them should hold office. Bear in mind that the Chair of the Strata Committee does not have any additional powers other than chairing meetings, despite what people might think (including megalomaniac Chairs).
It’s slightly different for incorporated associations where generally the members elect the President of the Management Committee. You also see that with some companies limited by guarantee of a particular type, such as medical associations.
Lady Penelope – Ziggy may mean that he/she is being forced to go to NCAT to try and get a resolution to the issues raised, i.e. the OC is not taking Ziggy to NCAT, but rather Ziggy initiating proceedings there is the only avenue available.
I don’t really know where to start with this, you say that this is a new development (I think). Has the scheme had its first meeting and elected a Committee? Has a budget and levies been set?
Dingo is right, if there is a gas leak then it has to be fixed, and quickly. The issue is, again as both you and Dingo have noted – is the gas leak a matter that is something that is the responsibility of the developer under the warranty? In that respect I am not sure why you would say the builder would not vote for repairs – he/she may well do that if it gets them out of being responsible for the leak.
So call the strata manager and ask them:
– was the gas leak something that should have been repaired under warranty
– if so, why wasn’t a claim made?
Re the notice of meeting, also ask the manager why you didn’t receive it.
If the scheme doesn’t have enough money to fix a gas leak, you should start looking at your budget and how much you should be paying in levies.
All owners have the right to attend Strata Committee meetings. Under the legislation they can’t speak at the meeting, unless the Committee resolves to allow them to speak. So effectively they can attend as observers.