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Ha ha very funny Jimmy.
The issue is common interest – where an owner and the OC have a common interest in the information, then there can be no objection to it being provided. However where those interests diverge, you need to think very carefully about whether it should be given to the person.
There are exceptions – if the letters contain advice from the lawyer relating to a potential or actual dispute with the owner, then the OC can claim privilege and is not obliged to make them available to the owner.
This is because the owner may be an adversary in an action against the OC. If the OC were forced to give the advice to the owner then privilege would be lost.
I agree in the majority of cases it shouldn’t be a problem however it goes beyond whether the business is impacting other residents’ enjoyment of their lot or the common property. The key thing is liability.
For example – if someone is running a hairdressing business from their apartment, and someone visits the property for an appointment and injures themselves on common property, who should be iiable?
I would say yes.
A corporate representative is a completely different thing to a proxy.
A company nominee is not a proxy vote, it is an owner’s vote. Look at in legal terms – the reason you have a company nominee/representative is because a company can’t turn up to a meeting in person, because they are not a person. Therefore you always have to have someone who is appointed as the company representative to exercise those powers, if you want to exercise those powers.
To be honest you are being very vague. It would be helpful if you spelled out what the exact issue is.
From what you have said you have been told you need to have a by-law drafted by a lawyer nominated by the strata manager. You’re not obliged to do that. Aside from anything else, neither a strata manager nor an OC can interfere in a person’s choice of legal advisor.
Can you clarify – are you being told to use a specific lawyer for a matter relating specifically to you, or the OC?
In any case – for example if it is the OC and the EC is looking at who they might engage for a legal matter, they can look at any candidates they like (which may be subject to approval of the owners at a general meeting, depending on what it is and how much it will cost).
If it is you, then you can use whomever you like.
As I noted, I am not familiar with the intricacies of this type of complex, management statements are a whole other area. When statements are prepared it is very important to make sure all items are included and specified if they are to be treated differently to the usual items.
FBITZ you seem to be focussing on what other complexes do about roof repairs. We have two buildings in our scheme which is residential – we just replaced the roof on one building and everyone paid the levies for that in accordance with their entitlements. A few years ago we replaced the back stairs and one owner objected to paying because she doesn’t use them. She didn’t get very far on that argument.
Gosh that’s an interesting Executive Committee!! Have you thought of getting some new members?
As a side issue – how does the EC meet the procedural requirements for meetings and making decisions if they have delegated their powers in that way. For example – if the EC were considering something that required a decision of the EC, they would have to issue a notice of meeting setting out any proposed resolutions 72 hours prior to the meeting. This gives owners who may have an objection the opportunity to give notice that they object, and if they meet the required number/percentage of owners the decision can’t proceed.
Yes you can limit what the Executive Committee can determine/do. At each AGM there is a compulsory motion under Schedule 2 34(g) of the Act which allows the owners to decide if any matter or type of matter can be determined only by the owners – that is, the owners in a general meeting.
Using that motion you can limit the EC’s powers to a monetary amount, e.g. a few thousand dollars, and/or only certain types of matters such as emergencies (you would be well advised to set out what constitutes an emergency). In any resolution the OC could say that the EC could not make any decisions relating to capital works etc. Note that the legislation also sets out specific things that cannot be decided by the EC, which includes taking legal action above the specified amount, and improving/enhancing common property.
i’m not sure of the fine details of your strata plan, but in the absence of specific provision in relation to the roof/roof membrane, I would assume that allocation would be in accordance with unit entitlements?
That is – if you have to raise a special levy to replace the roof membrane, the owners would be liable in accordance with their unit entitlements.
I don’t believe that you can change an allocation for a specific cost without changing the unit entitlements.
If damage is caused to someone’s property by common property, then the OC is liable for the damage. Whether or not it has been “maintained” is irrelevant. There are many cases where you don’t know something is wrong until things go awry.
We had strong winds that brought our awning down and our insurer accepted that claim, strange that Keep Calm’s insurer is making a distinction.
It’s not just children overhead in specific apartments. I live in a scheme of two small buildings with a shared courtyard, with back stairs leading up to the upper level apartments. The way the buildings are configured, any noise in the courtyard is amplified and carries.
We have had ongoing issues with owners who seem to think that the common property is free for their children to roam day and night. In a single day I had two children at my back door 8 times.
Coupled with that is the noise. The courtyard is used as a playground, the children scream, at times the noise is unbearable. Even if the children scream inside their apartment, the noise is considerable.
I understand that children will scream and cry and make a noise, but there is a limit. I also know that the standard by-law provides that children should not be allowed on common property unaccompanied. Aside from anything else, there are liability issues. It baffles me why parents think it is ok to let children aged 3 and 5 run up and down external stairs. And try asking parents to keep their children under control, they don’t want to know about it.
You have a periodic agreement, because the agreement doesn’t specify a term. In the case of a periodic agreement, a landlord must give 30 days notice of termination.
In the case of a fixed term agreement the agreement can’t be terminated before the end of the term, even if the property is sold.
You may not be aware that for residential tenancies of less than 3 years the Residential Tenancies Act requires that the parties enter into an agreement, refer the standard form:
https://www.fairtrading.nsw.gov.au/pdfs/Tenants_and_home_owners/Residential_tenancy_agreement.pdf
I don’t think the perceived 12 months is really relevant, at the very least it is is disputed by the parties that that was agreed. But this is not legal advice.
Everyone will have different views in relation to the rights and wrongs of a situation like this – some years ago I had some tenants who neglected to renew their fixed term lease, so it reverted to a periodic tenancy. I then sold the apartment. They protested, but I pointed out to them that if they had wanted certainty they should have renewed the lease, and after all it was my property.
What you are looking at is raising a special levy, which is different to the annual strata levies. So you are not varying the annual strata fees, you are imposing a special levy that is additional to the annual levies.
To raise a special levy you need to hold an extraordinary general meeting for the owners to approve that special levy. Note that you need to follow certain requirements to requisition the meeting, and the motion to approve the special levy should have all the information necessary for the owners to be informed about the circumstances that require it.
Note that you can also put a motion to raise a special levy at an AGM, it’s just that an EGM is a different meeting to the AGM.
Oh come on, unless you have installed a greenhouse in the apartment the OC is having a lend of you. I am surprised you have put up with this for so long, and if the apartment is in the state you describe it would be a health hazard for anyone in there. Have you had the air quality checked? What professional reports have you obtained?
Get a roof expert to look at the roof and give a report regarding the state of the roof and the gutters. Roof membranes only last so long and then they need to be replaced, and the same goes for gutters. Presuming that is the case, the OC is obliged to do that.
If the OC refuses, then you can lodge an application for an order for them to do it, as under the current legislation they are failing to maintain the common property under section 62.
If the ceiling falls down then it is the OC’s responsibility to replace it – taking into account that the ceiling is common property. I certainly wouldn’t be paying for any of the damage to your apartment that is being caused by a failure of common property. Note that the OC’s insurance will often cover that, but query whether it will where the OC is put on notice that the common property needs repair, and does nothing about, it or refuses to do anything about it. There are distinctions between what the OC insurance covers and what is covered by your insurance.
There have been cases where this has occurred and the Tribunal has ordered that any costs of repair of the damage caused must be met by all the other owners except for the affected owner.