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I suggest the easiest and fastest way to do something about this is to contact your local Council immediately and tell them what is happening. From what you have outlined about the works, it is likely that they need Council approval.
If works require Council approval they must first be approved by the Owners Corporation and then the plans submitted to Council.
The Council has the power to stop works immediately in such a case. We did that a few years ago where an owner just went ahead with quite extensive renovations with no approvals.
In terms of the scope of the works, if the owner misled the OC in that regard then the approval isn’t valid, to the extent that the works are inconsistent with what was disclosed.
If the two were properly nominated and they have acted as EC members then I don’t see what the problem is, they have effectively consented by acting. At the most it is a procedural irregularity, and I don’t think that would affect the validity of any decisions made by the EC.
If you have concerns regarding how the AGM was run you need to take that up with the strata manager – I know they can be difficult, it can take a lot of work so your first point is to make sure you know how a meeting should be run. If most members are concerned they will back you. Another way of dealing with it is to have the Chair of the EC chair the meeting.
In terms of how the EC makes decisions, if they want to make decisions then they have to follow the requirements such as giving notice of an EC meeting, and including proposed items that will be considered at the meeting. If they don’t do that, and they make a decision such as to spend a large amount of money, then the decision can be challenged.
One thing that bothered me was the EC getting legal advice in relation to their election. I presume the OC paid for that advice. There should have been a valid EC decision to obtain that legal advice, and I don’t see any reason why the other owners shouldn’t see that advice.
The EC is elected at the AGM, I don’t think you can use an EGM in that way. You could put resolutions to remove the members but those would be special resolutions, and then if they succeeded you would need to replace the members.
Who nominated the members? To me that is the issue rather than whether they consented. Were there valid nominations either in writing or by owners at the AGM?
The short answer is no. It is incumbent on the sender to allow enough time and post accordingly.
The strata roll will include the name of the owner and their address for the purposes of the roll (which may be different to the lot). Email addresses and telephone numbers don’t form part of the strata roll.
Email addresses and phone numbers constitute personal information under the Privacy Act in this case, because when you link them to other information that may be held in relation to the person, that person can be identified with that information.
As a rule you shouldn’t give out email addresses or telephone numbers without permission. You can ask the person if you can disclose it to another person.
Whether or not you are bound by the Privacy Act is another question, but to be on the safe side assume you are.
In our scheme another owner has just asked the manager for our contact details and I don’t want him to have mine, so I said no.
There are a lot of strange EC meetings (sorry couldn’t help myself).
Re some of the legalities – Jimmy is right, if someone sells then they can’t be on the EC so there is no need for a resignation letter, refer section . That element doesn’t matter.
In relation to the other two, the Act provides that the position is vacated upon receipt of written notice. However, from what you have said out of the five members there were possibly only one or two of the existing EC members there? – so as Jimmy says the meeting didn’t have a quorum so technically there was no meeting.
Note that the usual procedure when someone resigns (setting aside the two who had sold) is that they resign effective as at the end of the meeting, that way the meeting has a quorum and can effect any business it needs to get done.
I’m not sure why the manager said you only needed to elect three members if four had resigned.
In relation to electing EC members – strictly speaking Schedule 3 provides that where a vacancy occurs the owners corporation must elect someone to fill that vacancy – para 4(4) of Schedule 3. I know this has been debated before and some people won’t agree with me, but I believe that means the owners corporation in a general meeting. Whatever – it is a completely unworkable provision.
I suggest the easiest solution is this. Scrap that meeting, it didn’t have a quorum. Call another meeting and make sure the three existing EC members (including you) are there so you have a quorum. Get the two resigning members to do letters resigning at the end of that meeting, and then proceed with the meeting.
You will just have to elect new EC members at that meeting, because otherwise you can’t do anything once the two other members have gone. Unless you want to have a general meeting, and you can elect the members then!
You know that in this type of situation an owner can put a resolution to the owners corporation to agree to a payment plan in relation to the unpaid levies? This can include waiving some or all of the interest where someone is in a difficult situation.
In relation to the resolution to take legal action – I just wonder if misleading information was provided in relation to the resolution (that is – it represented that a much higher amount was outstanding), whether the resolution would be valid. It is a legal issue so would be a pain in the neck to pursue, but just a thought.
It never bothers me that much if people are behind, as long as they are paying, after all the OC is getting the interest.
Perhaps I should have been clearer – I said the person has to be the duly appointed representative of the estate. The strata manager needs to be satisfied that they are the duly appointed representative. This is usually by grant of probate, unless the estate is under a certain amount (which it would not be here because the property forms part of the estate).
In relation to what you should be involved in, what I am saying is that you are entitled to rely on the strata manager in the absence of information to the contrary. On matters such as the apartment being leased out, if the executor didn’t/doesn’t have the power to deal with the property, that is their problem – it isn’t a breach of the Act.
i suggest if you are concerned just send a note to the strata manager asking them to confirm that they are satisfied that the executor is the duly appointed representative, and if so on what basis.
We had a case a few years ago where a person put in a proxy to vote at an AGM. The proxy was invalid because the relevant property was still in the name of the deceased previous owner, even though probate had been granted. In that case that was the fault of the estate’s lawyer who should have effected the transfer of the property.
If probate hasn’t been granted, then the owner of the unit is the estate (and the estate may be the owner after probate is granted). Presuming the appropriate documentation is supplied, I don’t see what the problem is with the estate nominating someone to the EC, but it would have to be the duly appointed representative of the estate. That is a matter for the strata manager, rather than you. You could ask the strata manager if they are satisfied that the nomination is in accordance with legal requirements.
To be honest I don’t think it is any of your business whether or not the unit can be leased. That is a matter for the executrix.
We had a similar issue a few years ago. Jimmy is right, the owner needs Council approval for what they are doing.
I suggest that to save a lot of time you contact your Council and tell them what is happening, and they can require the owner to stop the work. That is what we did, the Council came out pretty much straight away, and issued a stop order. Note that undertaking works without Council approval is a breach of the Environmental Planning & Assessment Act.
The advantage to that approach is that it is then up to the owner to sort out the mess, which would include applying for Council approval which requires the consent of the Owners Corporation. And at least at this stage you don’t need a lawyer although it would probably be a good idea to use one down the track.
I don’t agree with Mailbox’s position.
Austman – a strata scheme is not a magic pudding. It is not there to pay for any damage that may occur, regardless of the cause or what has been damaged. Flipping the equation – on what basis should an OC pay for damage to someone’s property caused by someone else?
If you live in a house on a property and a tree on your property falls on your neighbour’s house and damages it, you will be liable for that damage. That is because it is your tree. Whether or not you knew the tree was unstable, or whether wild storms brought the tree down, it’s your tree wot done the damage.
I think I have mentioned before that people get quite hung up about negligence – negligence is an area of tort law. You may or may not be negligent, that is a separate issue. To that extent I believe the SCA document is misleading.
I am not familiar with the clock radio case but those circumstances, are distinguishable in a number of respects. The owner would be covered by insurance in a case like that and if they didn’t have insurance, they are idiots.
Austman – the issue is not whether the owner of something that causes damage has done anything wrong. The question is who owns the thing that caused the damage. The owner is liable for that damage.
Just to clarify re voting on special resolutions – for such a resolution to pass, there must be no more than 25% of the votes based on unit entitlements cast against the resolution. Otherwise the resolution is not passed.
An abstention is a non-vote, it is someone choosing not to vote. It is not an indication of support for anything. If you vote informally in an election you are doing the same thing, you are choosing not to exercise your vote.
It is very common for strata managers to chair meetings, ours does which is fine because he knows what he is doing. If anyone is chairing a meeting and there is a resolution in which they have an interest, they should step aside for consideration of that motion.
No the strata manager is not correct.
An abstention is an abstention – it means that the person has chosen not to vote on the matter. There are three options yes, no or abstain. If “abstain” meant “yes” then there would be only two options, wouldn’t there?
It doesn’t matter why someone has abstained from voting, they have simply chosen to abstain.
A special resolution requires that no more than 25% of the votes cast are cast against the motion, the value of the vote being unit entitlement. Therefore if more than 25% of the vote on the resolution based on unit entitlements was cast against the resolution, then the resolution was not passed.
Tell your strata manager that if he continues to give bad advice you will have to seek further advice from Fair Trading.
I think the strata firm is bluffing – they would, wouldn’t they?
There is a basic flaw to their argument – how could the wider scope be impliedly authorised, when it would require a resolution of the OC? That is, I presume the fees fell within section 80D, so you couldn’t go any further without a resolution of the owners.
You know the strata manager signed a costs agreement that was contrary to the OC resolution, the mistake was theirs. As a first step I suggest you contact Fair Trading.