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To be on the EC you have to be nominated by an owner. An owner can nominate themself. If they are not attending they should give the strata manager a written nomination prior to the meeting, but can also have it given at the meeting, but it must be in writing.
The next step is the owners determine the number of people on the committee. You can use the proxy to vote on any motion on that, as well as vote in your own right.
If there are more nominations than places on the Committee, then it goes to a vote for each person. You can vote in your own right and with her proxy on each person.
You add up the entitlements, so on a poll vote if the three owners have a total of 180 and the six owners have a total of 240, the six owners prevail. Or vice versa.
SeeksHelp – given that you have an order of an Adjudicator that the OC must implement a by-law, if I were you I would proceed on the following basis:
– send a letter to the OC noting the Adjudicator’s order and advising that you intend to commence the relevant works on X date.
– also note that you have done all things necessary in order to put the by-law in place, and that the OC has chosen to ignore the Adjudicator’s order. In light of that, you consider it is reasonable for you to assume that the OC intends to assume responsibility for the works going forward.
– start the works.
– wait for them to do something. I doubt that they will, and if they do, for example seek an interim order for you to cease the works, they won’t have a leg to stand on.
Opportunistic. Nice try but he’s having you on.
Existing agreements stay in force, there is no need to enter into a new one at this stage. Refer here.
Not ideal to have a strata manager who is very very chummy with the Chairman….but that’s another matter.
Wait until the issue arises and then deal with it. You can’t stop the Chairman renting his apartment to the strata manager.
If the foyer is currently painted white, and the EC proposes to paint it blue, then that is a change that is significantly different.
If the current carpet is beige, and the EC proposes to change it to dark green, then that is significantly different.
In both those cases, or a combination where a reasonable person would say it was a shift away from the current colour scheme, then the EC should put it to the OC as a whole.
I suggest the best approach is for the EC to come up with the proposed paint and carpet choices and if they are similar to what is currently there, send a notice to all the owners prior to the EC making its final decision. All owners have a right to attend the EC meetings so if the EC wants to proceed on the basis that it is not an OC matter, when you send out the notice of EC meeting any owners who have concerns can raise an objection. If they don’t then you are fine to proceed.
I would definitely attend, after all you have been invited and you might as well take the opportunity.
In the case of legal privilege – once they have disclosed information to you any privilege is lost (not that I am giving you legal advice). So if they choose to disclose something on which they should claim privilege, more fool them.
The special levy is payable in accordance with unit entitlements, you can’t differentiate or exempt an owner from a special levy in those circumstances.
The only thing that might be relevant is whether the carports are part of common property, or whether they form part of an owner’s lot. From what you have said it seems they are part of common property. If that is the case then the levy is payable in accordance with the unit entitlements.
By way of example – we have two buildings in our scheme. Both of the buildings have had to have roof repairs. The owners paid for both those repairs in accordance with their unit entitlements, regardless of whether or not the roof is on their building. Similarly the people on the ground floor don’t use the back stairs, but they also had to pay for those stairs to be replaced.
Note that if the carports formed part of someone’s lot then they would be responsible for any repairs/replacement.
The only query I have is when the managing agent reported the matter to the Strata Manager.
FloydO says that the strata manager has advised that the managing agent told him that the agent raised it with the owner over a period of time, but it may be that the conversation between the strata manager and the managing agent only occurred recently when the damage came to the attention of the OC.
So – when did the strata manager become aware of the issue? Were they only advised by the managing agent that the owner knew recently? If that is the case then the ball may be back in the court of the owner for failing to raise this with the OC.
One other thought – if you have a scenario where husband says it’s not fair because wife isn’t there to defend herself, say fair enough, we’ll defer consideration of the matter until she is able to attend and speak to the issue.
After all due process is so very important.
You can make a direct application to NCAT in relation to the noise, you don’t have to rely on the EC who seem to have washed their hands of the matter.
I suggest you contact Fair Trading for advice on how to make an application.
You can also contact your local Council and the police.
Now that is a tricky one.
There are some technicalities in relation to EC members being represented by someone else.
Clause 3 of Schedule 3 of the Act provides that a member of the EC can appoint an owner to act in their place as a member of the EC, provided the EC consents to that. So a couple of things:
– is the husband an owner? That is – is he on the title of the property? If he isn’t, then he can’t act in the wife’s place as an EC member and that solves your problem.
– if he is an owner, then there is the matter of the EC consenting to the wife appointing the husband. You say that the other EC member is likely to vote their way, but that still leaves the other vote which if it were negative would mean that no consent has been given.
This is presuming that the husband/wife can’t vote on the consent issue – I am not too sure of that, but at this point it can bind them up in a few technicalities, and you could call their bluff and just say sorry you can’t vote.
At the very least you should be insisting that the husband/wife duo comply with the formalities required if they wish to play this game. What I am saying is that the husband can’t just expect to roll up and represent his wife without at least going through the process required.
The thing is, even if you do that, if the other EC member is still too chicken you are not going to be able to get the notice to comply issued.
Otherwise you could put a motion to the EC requesting that they enforce the relevant by-laws. If they don’t you have the option to make your own application to NCAT in relation to the breach/es.
More generally, I am not sure how many people are in your scheme but have you thought of getting more people on the EC?
You pay GST on your strata levies if the scheme is registered for GST – it doesn’t matter what the levy is for, it is a levy on which GST is payable. So the answer is GST will be included, presuming your scheme is registered for GST.
Unfortunately the Chairman was wrong – by my calculations 34% of the votes were against the by-law, so as a special resolution it wasn’t carried. As Whale points out you need at least 75% in favour, or technically less than 25% against. I missed that in your original question.
More generally, in the case of a by-law which is proposed by the OC/EC, then the costs are met by the OC including registration of the by-law.
So sorry you are back to square one – the by-law hasn’t been approved so no air conditioners.
Can I check one thing – your original question refers to a resolution to have a by-law drafted and registered. Was an actual by-law put to the meeting for approval, or was it just a proposal to have a by-law drafted?
I am not familiar with the ACT law, but for NSW and generally the rules are:
– any owner can request that a motion be included on the agenda – generally you forward that to the strata manager for inclusion on the agenda. Provided you do that within the requisite time it should be included on the agenda.
– it is not up to the EC to decide if a motion should be included on the agenda. I believe that ECs often think that they have a power of veto, but they don’t – the owners collectively do, by way of consideration at the relevant meeting.
– there is no requirement for a motion to be seconded – why should there be? A motion succeeds or fails on its merits.
More generally – a motion may be ultra vires, or poorly worded, or just not possible. That is a matter that can either be raised at the time an owner submits it to the strata manager, or if they insist on proceeding, at the meeting. If the motion is ultra vires or otherwise legally impossible, then it can’t be approved. Even if it is approved it will have no effect. If it is poorly worded or unclear then it can either be amended at the meeting (within limits) or the owners can simply not approve it for that reason.
In terms of putting a name to a proposed motion of course the person should be identified, if it is not coming from the EC. The way we do it is we identify the specific motion as being proposed by the owner of Lot X, and in that way it is distinguished from the standard motions and others that may have been included by the EC,who otherwise stand in the shoes of the OC. That is standard procedure for all types of meetings – if someone wants to put a motion up then surely they want to stand behind it.