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I’m not as nice (or reasonable) as Whale. Having just come out of a three year long legal dispute with an owner re illegal works (which we won), I don’t have any patience left.
No it’s not fair. The OC should not have to bear the responsibility for non-compliant work undertaken without its approval. If approval had been sought, it would only have been granted on the condition that the owners agreed to exclusive use by-laws making them responsible for the works, and that the works were compliant with regulations.
Assuming some or all of the current owners are those who undertook the illegal works, and you have enough owners whom you can persuade to do something about it, you could advise the relevant owners that you will have to consider lodging an application with the Tribunal to reinstate the common property to its original form. In any application you could also seek an alternative order that the relevant owners agree to exclusive use by-laws making them responsible for the illegal works, and that the lot entitlements be adjusted to take account of any change of use/value.
If there are any lots that are not owned by the persons who undertook the works, then one option would be for the OC to reinstate the properties to their original form.
If it were me, I would be tempted to make an application in my own right, if I couldn’t get enough owners to agree. But that’s just me. Whatever you do, I would recommend you seek legal advice.
If you asked for the correspondence in relation to a specific matter or matters, and the strata manager gave you copies of correspondence that had nothing to do with those matters, then you should tell him/her that he can’t charge for that.
If your request was open-ended then unfortunately he will be entitled to charge for it.
The way the legislation is drafted it is contemplated that you call for nominations first, and then the number of EC members is determined, then the EC members are elected. One of the reasons for that is so that you don’t have a situation where you have a certain number of EC members but will never be able to have a quorum.
Refer for example here in Schedule 3 (which refers to the first AGM)
(c) to determine the number of members of the executive committee and to elect the executive committee…
Why don’t you just draft the motion as open, i.e. “That the Owners Corporation determine the number of members to constitute the Executive Committee”, followed by “Elect the members of the Executive Committee”?
As the legislation currently stands you can’t have 12 members of the EC, the maximum is 9.
No – the only way he could do that is if the change required Council Approval, and he lodged an objection and the Council withheld approval because of that.
But that is an entirely different matter to approval by the Owners Corporation.
If a mortgagee or chargee wants to have their interest in relation to a property recorded, it is up to them, not the owner. If they wanted to enforce their interest then they would be the ones taking action. In the absence of notice you are entitled to assume there is none.
In summary – what Whale said.
Of course the Owners Corporation can be liable, it’s called occupier’s liability. Why do OC’s have public liability insurance? Being a strata scheme doesn’t exempt an Owners Corporation from that kind of thing.
For example refer here, where the strata manager was held liable in part.
https://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/180.html
And this one, where someone tripped on a driveway.
https://www.austlii.edu.au/au/cases/nsw/NSWCA/2005/256.html
Yes you’re right, based on what you have said there are five owners who have lots that include garage spaces in the underground garage. It isn’t clear what part of the underground garage may be common property, but to the extent that it may be, even if there were space to install stack parking in the common property for use by other owners, that would require a special resolution of the owners corporation because you would be making a change to the common property.
If it affected the use by you and the other 4 owners of your parking spaces, then you and the other owners would have to specifically agree to that.
Also presumably Council approval was given to the property on the basis of the underground garage as it is, so any change would have to be approved by Council.
meganpepi – if you have had a full management order from the Tribunal then there must have been some serious issues with the management/administration of your plan. This is not the type of order that is given lightly, and the Tribunal needs to be satisfied that essentially the plan/scheme is not functioning, especially if full orders are made, which means that all power was taken away from the owners.
If there were insufficient levies then that also had to be rectified. In the general scheme of things $1700 a quarter in total is not a huge amount of money, although of course if the scheme were self-managed then you wouldn’t be paying a strata manager. We don’t know what other issues there were or are that require the increase in levies.
It also seems from what you have said that the other owner instigated the application for an order for a compulsory strata manager. They must have, as no-one else has standing to request such an order (well ok they might, but it would be unusual).
I think you are correct – at present you will not be able to remove the strata manager. You don’t say how long their appointment is for, but you will need to wait at least until that lapses.
It is the Owners Corporation who is entering into the contract for the work, not you. Owners Corporations have a legal personality so they can enter into contracts, that is why they have a seal. Of course you don’t always have to enter into a written agreement, but the principle applies across the board.
So for any work it should be made clear that it is being done for the OC, and that the invoice is issued in the name of the OC as the contracting party. Aside from anything else, that won’t leave you with the debt in the event that the OC refuses to pay (unlikely but going by the stories on here I am sure it happens)
Yes, Kangaroo is right. It occurred to me yesterday that the other way of doing it is when you strike the special levy do so with a payment schedule according to the timing of the works, so that each owner pays their share according to unit entitlement at that time.
So the schedule would set out the amount payable by each lot and the date on which it is payable.
Because:
– it’s a one-off, once the windows are done and paid for, there is no need for anything else to be on the records
– the only element you want binding here is the owners being responsible for payment of the relevant windows
– I have assumed that the OC would continue to be responsible for the windows going forward, as per section 62
– the reason the agreement would bind successors is to provide for any sale/transfer of properties before all the windows are done, and someone saying it doesn’t apply to them apropos payment
– what’s the point of having a by-law, once all the windows are done and paid for? You wouldn’t need it then, would you?
It sounds like you want to do it so each owner pays for their window replacement as and when it happens, on the basis that it is the same number of windows and those windows are the same size and will all cost the same per lot.
Yes I think you can, and I don’t believe you need a by-law. A scheme where a friend of mine lives did a similar thing when they had to replace their ceilings.
What you need to do is get all the owners to agree to pay the cost of the relevant window replacement for their lot, but on the basis that the windows remain common property (which is what I would assume you want).
You would do that by entering into an agreement signed by all the owners, expressed as binding the owners and any successors in title. In essence what you are doing is agreeing to a variation of the usual section 62 obligation, on a one-off basis. I think that the agreement would have to be executed as a deed. You would be best to get a lawyer to draft it, because this is not legal advice.
I believe it is from the date the occupation certificate is issued, which would be the final certificate in your list.
gloriajean, if as you say this “building manager” has been operating for years without a contract and he is actually doing nothing or very little, then you can get rid of him. If he doesn’t have a contract, on what basis is he doing whatever it is he is doing, and on what basis is he being paid?
I do a lot of work for the OC (I am the secretary). This has ranged from managing a building project, to drafting submissions to the CTTT, to briefing lawyers, to searching council records, to just general “stuff”. The only reason I have done that is because no-one else seems inclined to and it generally saves us time and money. However, after a very eventful year last year I added up the hours I had spent and it exceeded 150.
I am not inclined to spend any more time on this sort of thing unless in certain circumstances I am paid for it. I think it is reasonable that if someone does certain types of work then they should be paid, the fact that they are an owner and/or on the EC shouldn’t preclude that as long as it is transparent.
I have my doubts about the propriety of a $100K+ consultancy fee, and I hope the person getting it has some decent indemnity insurance.