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Your strata manager needs to remind the real estate agent of their obligations under section 119 of the Act which is to give notice of a lease including the names of the tenants within 14 days.
https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma1996242/s119.html
No it isn’t illegal. Next time someone says that, ask them to tell you the specific law you are breaking.
there was a detailed discussion on this a while ago, Whale where are you, I know you can find it!
Your situation sounds very difficult.
Have you approached or considered approaching the Council?
Perhaps the easiest way of doing it is to convene an EC meeting, including on the agenda a proposal for seeking Council approval to have the trees removed. (you are on the EC aren’t you?)
Then approve that resolution, noting that the Chair has been in correspondence with the Council without EC authority.
You may also want to contact the Council and tell them that the Chair’s application was made without authority and has no effect. Usually those sorts of things have to have the OC seal on them, although things can be a bit lax.
In relation to removal of trees and getting Council approval, it is not an easy road, so good luck.
Further to Jimmy’s post, no-one has a right to be on the EC. You have the right to nominate yourself or someone else for election to the EC, and then it depends on the number of members determined and election, if any.
If everyone had the right to be elected we would have a very crowded Parliament.
Yes it can be a difficult balancing act, and each circumstance is different. In our scheme there is one person who to date we have kept off the EC. That person is dishonest, and has had no qualms about damaging the common property and breaching by-laws whenever they feel like it. The reason I do not want that person on the EC is because if they were, I know that they would instruct tradesman to do things around the property on the basis that they are an EC member and have authority. That person thinks I am evil incarnate, which is not surprising.
The spelling is “vexatious”.
What a mess, it sounds like Cappy’s OC has been very badly advised. If someone is asking for the OC to do something or give them something, the first rule is that they pay all the costs, from the outset.
There is no way I would agree to what is proposed. Aside from anything else, has a proper valuation by a qualified valuer been done of the space, so that the owners can consider if it is being properly recompensed? That is a basic requirement – you take the value of the space once it has had the works done, subtract the amount spent on it, and that amount is how much the owner has to pay the OC.
If it did go through I would suggest lodging an application for an order invalidating the decision. Also get rid of your EC and strata manager.
Presuming you have done all the termination steps properly, and it sounds like you have (a resolution to terminate need only be done as a majority decision of the OC, note that is not the EC).
This is the relevant provision of the Act. Tell the Strata Manager in writing that you require him to hand over the records or you will lodge a formal complaint regarding his conduct with Fair Trading.
https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma1996242/s105.html
I’m not sure why you went to mediation.
Granting an owner exclusive use of an area of common property and transferring title to an area of common property are two different things. Although they may have the same effect for most purposes, the legal requirements and consequences are different.
Granting exclusive use of part of the common property can be done by way of a by-law which requires approval by special resolution. You would want to make sure that the by-law set out in enough detail who was responsible for what in relation to that part of the common property. You would also want to look at requiring the person to pay the OC an amount of money for something which is in effect perpetual.
However, the property remains the property of the OC at law, i.e. the OC is the party on the title and that means certain things can’t be done with it, for example the person who has exclusive use couldn’t take out a mortgage using that part of the property as security.
If the OC wanted to sell and transfer the title of part of the common property there are a number of steps that would have to be taken, including a plan of subdivision that is lodged with the Titles Office, as outlined by Whale. And I think that does need unanimous resolution because effectively you are taking something away that the OC effectively holds on trust for each of the owners forever, so all the owners have to agree. You would think the Act would be clearer on that.
There are a number of issues with that, mostly outlined by Whale. The other thing is if you offer a discount on levies to the EC members, then you will have to adjust your budget accordingly, i.e. raise the levies payable to take account of the discount, so that you are levying the amount in the budget.
I spoke to our strata manager a while ago on a related matter, where a payment to an EC member was due (reimbursement) and he advised that they couldn’t do a book entry across to the levies owed by that person. That may have been due to our accounting system. However, I think it is cleaner to just give them the money, and then they can do what they like with it.
One thing you need to consider – if EC members are being “paid”, that can raise liability issues, as there are different considerations for actions in a paid and unpaid capacity, so you need to check with your insurer.
The two work in tandem, it just means that you can’t have two co-owners both being nominated in respect of the same lot, because they would be doubling up.
So a co-owner can either be nominated by the other co-owner who is not standing for the EC, or by another owner. But they can’t self-nominate.
Refer 17(1)(b) of the 2010 Regulation which refers to nomination of candidates who are eligible for election. Section 2(5)(a) and (b) of Act determines in what circumstances a co-owner will be eligible.
Going back to the original question – WHS applies to workplaces, so if anchorage’s scheme does not have employees on site, and the scheme is purely residential, then the advice that it is legally compulsory to have an inspection is incorrect.
Non-residential means non-residential, i.e. for some other use such as commercial premises.
More generally – an OC has a general responsibility to keep the premises safe. For example if a hole opens up in a pathway, or it becomes clear that some steps are unsafe, then it should take steps to fix the problem. If it does not, then it may find it is liable for an injury suffered by an occupant or a visitor. That is not a responsibility under the Work Health and Safety Act, it is a more general legal principle.
There have been cases on the OC responsibility to keep the premises safe, which centre around section 62. A well-known one is Ridis, where the plaintiff failed in his action against the OC at Court of Appeal level.
No you don’t, unless you employ someone or part of the premises are used for non-residential purposes. Refer here:
https://www.workcover.nsw.gov.au/newlegislation2012/Pages/strata-title-body-corporate.aspx
Mediators are trained to be mediators, that is what they are there for. In many cases they may be legally qualified, but not necessarily in the subject matter. You might expect a mediator to have an awareness of strata law at the very least. Bear in mind that CTTT mediators don’t just deal in strata matters, as the jurisdiction of the Tribunal covers a wide range of areas.
However – in a mediation scenario the mediator can call in a strata law expert to advise one or both parties of what the law is. That happened with us only recently with an owner who was insisting on all sorts of things that were seriously in the realm of fantasy, so the mediator called in the expert who said no, that is not the law at all. Not that it did any good, but it was nice to have someone tell the owner he was wrong.
Jimmy’s point can’t be repeated often enough – the mediator is not there to make a ruling or adjudicate, they are there to facilitate a discussion of the issues and in the best case assist the parties to reach a resolution.
Yes I was confused about that, I couldn’t figure out how the two penthouses could be 14. But if they are twice the size and at the top, it may be that the allocation is not that far out. Size does go to valuation, as do aspect, location, approved use etc.
The reason I was banging on about independence is because there have been a number of cases where individual applicants have got valuers to put in what you would call self-serving reports, and these have been knocked back. JGOWI is right, you need someone who is experienced in this area, but if the valuer is appointed by the OC and acts for the OC, then they have to be objective, because they are acting for all the owners.
Thanks Aquarian, that fills in a few gaps. So the scheme is relatively recent. It is true that valuations based on purchase price may not be accurate, given that some of the transactions may not have been at arms length. But it would not be difficult for a qualified independent valuer to do a proper valuation of the lots at the time the scheme was registered.
Re Kangaroo’s question – how do you work out the value (at the time of registration)? That is what a valuer does. If you look at the unit entitlements cases, there are lots of examples of valuations being given for schemes built a long time ago. Bear in mind that the Land Titles Office records the prices paid for properties when they change hands, if you want to you can find out what any property sold for, by doing a search.
“Value” is an elastic concept, and you can have both a subjective and objective valuation. So just because someone buys something for certain price, that doesn’t mean that will the value ascribed to it by a valuer. Refer this from one case:
The values of the lots are to be determined by a valuer. The High Court in Spencer v the Commonwealth [1907] HCA 82; (1907) 5 CLR 418, defined how to arrive at the valued – that is the “willing but not anxious vendor and purchaser”. In many cases to ascertain this it is necessary to obtain evidence of prices in surrounding properties at or near the relevant time….
So a report giving the value of the properties now isn’t going to assist, and from what Aquarian has said, it sounds like the valuer hasn’t even given a basis for his/her conclusions. What you need to do is engage an independent valuer and instruct them to provide a valuation of the lots at the time of registration. The reason I keep saying independent is because I get the feeling that the current valuer is not independent, but I could be wrong. At the extreme, the owners of the penthouses may find that the entitlements should be readjusted in a way that is not in their favour.
Here are some cases to give you a feel re the CTTT approach.