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The walls are common property. You will find with almost all buildings with walls of this type the plaster on the walls will develop cracks over time, due to movement in the building and weather conditions. From experience there is not much you can do about it, while you can attempt to fill a crack or plaster over it and repaint, it will just come back again. I think that is what david2708 means by “fair movement cracks”.
I had recurring cracks in my kitchen wall and the only way to stop them returning was to insert construction joins, which means you have slight grooves in the wall. But those cracks were pretty significant.
The key issue here is to determine what is causing the cracks in the wall. If it is a defect in the common property such as inadequate drainage around the area, or subfloor drainage or something like that, then it is the OC’s responsibility to investigate and take any steps necessary to rectify. However, you should get a qualified person in to do those investigations and issue a report with recommendations. That is the first step. david2708 is right – you can speculate about the reasons why a wall is cracking but that doesn’t mean anything.
There is no point in fixing a crack in the wall if the underlying cause (if any) isn’t addressed.
If there is a defect in the common property causing the issue then it is up to the OC to fix it, the fact that the property was constructed to standard at the time doesn’t mean anything in this case.
The starting point is whether when the previous owner put down the floorboards whether the owners corporation put in an exclusive use by-law making the owner responsible for those floorboards and the works associated with them.
For example if a by-law was put in place at the time, then the question would be whether the the current issue is a result of those works – if they were and the by-law was clear enough, then it could be that the owner would be responsible for fixing it.
If there is no by-law and there are issues with the floor bearers and joists, on the face of it I would say that it is the owners corporation’s responsibility to fix the problem because the floor bearers and joists are common property.
If the owner is claiming that it is up to the owners corporation to fix the problem then one advantage you have is that the owner can’t just bring their own person in to do works. It is up to the owners corporation to bring their own expert in and investigate, and make a recommendation as to the works that are required. While that may sound like a pain in the neck (and it is, we have had to do that on a completely different type of problem), it means that the owners corporation is in control and the owner can’t just do whatever they like and give the bill to the owners corporation. To put it another way, the owner can’t have their cake and eat it and present the OC with a bill.
So as a preliminary I suggest you advise the owner in writing that the OC will get someone in to investigate and determine what needs to be done, they are not to undertake any works, and that the OC will not reimburse them for any works they do off their own bat.
If the other owner can’t be there then yes you can use a proxy, and vote at the AGM as outlined above.
The other owner will need to nominate themselves to be on the Strata Committee, just get them to put that in writing and give it to the Strata Manager before the meeting. Also they should indicate whether they wish to stand as one of the office bearers which is the subject of a separate vote at the Strata Committee meeting.
The only problem you will have is that when it comes to the vote for office bearers on the Committee, you can’t use your proxy to vote for them at that meeting, so you may have an issue there.
This type of vote can be decided on the number of votes on a show of hands, but any owner present can demand a poll, in which case the vote is determined on unit entitlement.
For example – if there were one or more dissenting owners, and based on calculations a motion would not be carried if it was determined on unit entitlements, then the owner/s would be likely to demand a poll.
As outlined above, if you have the unit entitlements which will carry a poll vote your way, you can:
– set the number of Committee members at three
– each of you can nominate yourself as a candidate for the Committee (I am assuming you are not co-owners)
– if there are more nominations than the number of positions available, elect you and the other owner to the Committee.
If it worked out that the Committee had three members and you and the other owner were on the Committee, then you can determine who the office bearers are, because you have the majority of votes on the Committee (nothing to do with your unit entitlements).
You can nominate yourself to be on the Strata Committee.
Note that the owners have to vote on the number of members of the Committee first (refer below), so assuming there are more nominees than number of positions available, then you can vote in your own right and use the other owner’s proxy to vote as well in respect of that matter, subject to the proxy limitations set out in the Act:
– if the scheme has 20 lots or less, then in addition to your vote you can only hold and vote one proxy, and you can use the other owner’s proxy
– if the scheme has more than 20 lots, then you can only hold proxies that are not more than 5% of the total lots. Note this is calculated by the number of lots, not entitlements.
For example – if there are 21 to 39 lots, you can hold one proxy
40 -59, two proxies
60 – 79, three proxies
Office bearers is a separate matter and is determined by the members of the Committee once the Committee is determined. The OC doesn’t vote on that, the Committee does.
So in order:
1. Owners vote on number of members of Committee – you can use the proxy then, if it is 5% or less.
2. Owners vote on persons to be on the Committee, assuming there are more nominees than positions – you can nominate yourself and vote both your entitlements and the proxy from the other owner.
3. Vote on appointment of office bearers of the Committee, which is a decision of the Strata Committee, refer section 41 (Schedule 1 is misleading here because it refers to voting for election of office bearers). You can’t use a proxy at a Strata Committee meeting.
The unit entitlements of you and the other owner would only be relevant if you called for a poll. If there is no poll then you would only have two votes.
I am presuming you went through the usual processes of the owner getting permission and a special by-law applying to the works which makes the owner responsible for those works. Given the extent of the works the details of the works would have to have been reasonably detailed to ensure there was clarity regarding responsibility, so that the other owners were protected.
The permission given and by-law would have referred to two bedrooms. To the extent that it is three bedrooms, the permission given and by-law are void, i.e. if you ask for permission and put up a by-law for something on the basis of it being two bedroom and it is three bedroom then the basis for giving the permission and approving the by-law is negated to that extent.
Avenues available to the OC include seeking an order which could require the owner to comply with the permission granted, i.e. to have two bedrooms. Or you could require him to go through the whole process again. (or put it back the way it was)
Jimmy mentioned the Council – did the owner get a DA, the application for a DA would have to have been stamped by the OC, and the owners would have to have approved that in a general meeting. The DA would include detailed specifications of the works. If they didn’t get Council approval then that is very serious and I would contact the Council immediately.
I am curious re the owner building a whole new lot in a basement. There are strict building code requirements for habitable spaces – it may be that the area meets those requirements which includes height of ceiling and windows, but thought I should raise that. A Council will not give approval for habitable areas where the Building Code requirements can’t be met.
Finally – if the owner built a whole new unit in the basement, did you reallocate the unit entitlements in the strata scheme to reflect the new use of that area?
That’s the thing, the Strata Manager can attend Committee meetings anyway, ours attends most of ours as a matter of course (mainly because the Chair doesn’t know how to be a Chair).
Taking that into account I would strongly suggest that a SM never be a member. If things are really bad and a statutory manager is appointed, then they are running the show anyway.
I’m not sure why the owner was told that she couldn’t speak at the meeting, if she is an owner then she is entitled to speak at any general meeting.
The details you set out are a bit confusing, if there was no quorum at the advertised time, then after the meeting was adjourned and re-opened how could there have been a quorum, unless someone else had turned up in the interim?
Anyway – the way it works now is that if you adjourn a meeting and then re-open it and there is still no quorum, the Chair can either adjourn the meeting for at least 7 days, or declare that those present either in person or by proxy who are entitled to vote constitute a quorum for that meeting.
So that is what the Chair should have done. You are right, the person who left the meeting was not present (or did she leave a proxy?), but the Chair could have just said we have a quorum and the result would be no different.
They should change the minutes of the meeting though.
On a strict technical reading of the Act, yes they can be a member of the Strata Committee, because an owner can nominate anyone to be a member of the Committee.
But that would be really bad governance. The strata manager is accountable to the Committee, so not sure how that works if they are an actual member of the Committee.
Not that bad governance seems to bother a lot of people…
In this case the SM isn’t a Committee member so it doesn’t make any difference.
If a person is non-financial they are not entitled to vote, so they are not included in calculations of the quorum.
The exception to this is motions requiring a unanimous resolution.
The main issue is the quorum, i.e. whether the Committee can still make decisions where it only has 3 members.
This is because the Act (Schedule 2) provides that the quorum is determined by reference to the number of members determined by the OC at its last meeting.
In this case, the number determined was 6, the required quorum is half, therefore you are ok provided all of the remaining three members attend any meeting. If you have less than 3 at any meeting, then there is no quorum.
The Strata Manager can’t be a member of the Committee, and even if he/she attended and acted as Chairman (which they can do) that would make no difference to the quorum.
In thes circumstances the DA application has to have the seal of the strata scheme affixed to it before the Council will consider it. This has to be approved by the owners at a general meeting.
It does not apply to this kind of case and both of those cases are distinguishable on their facts – in the first, the owner applied for approval and no response was given. The second involves a 17 year old cat.
As noted above, if a principle of acquiescence applied, anyone could do anything to the common property, and just say that the OC had acquiesced once a certain amount of time had elapsed. There have been a number of cases where owners have been required to remove works affecting common property where approval had not been obtained.
Under the previous Act, section 65A applied, under the current Act section 111 applies. It is not just a matter of compliance with by-laws.
As per PeterC, if everyone has an air conditioner, then what difference does it make whether the OC or the respective owners pay for relocation – the end result is the same?