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Yes – in the example you give Jimmy, that is an example of the allocation being unreasonable at the outset.
There are examples of blatant skewing of entitlements, but Aquarian didn’t go into the details of why the minority believe they are unfair.
As I said, it is often the case that people think they are unfair, but they’re not. That is why you need to be pretty certain that the original allocation was unreasonable, otherwise you are wasting money in making the application.
Our strata manager told us of a scheme he runs where the penthouse which was about triple the size of a ground floor unit had an entitlement of 30, versus 90 for the ground floor unit. Now that is unreasonable.
We recently had an owner who raised this issue, as they felt that the allocation was unfair. I went away and did some calculations and was surprised to find that although at first glance they did look a bit out of whack, the entitlements were surprisingly fair, based on the value of the lots. It is often the case that owners will claim that the allocations are unfair, but when you work it out by percentage of the total pool it isn’t.
I’m curious as to why the minority of owners believe the allocation is unfair, what were the reasons they gave?
Like Jimmy I thought that you could reallocate unit entitlements if the owners unanimously agreed, but it seems that isn’t the case in NSW (other States provide for this). So if you have to apply for an order, there are some key things:
– the principal consideration is value of lots, as distinct from size, or views or whatever else (as those other elements will go to the value anyway)
– you have to satisfy the CTTT that the entitlements were unreasonable at the time of allocation, and this has to be supported by a valuation of the lots at the time of registration
Note that valuation now is not relevant, unless you fall into 2(a1) or 2(b), which is unusual.
– the valuation and application process is expensive.
Unless the OC is pretty certain that the entitlements were unreasonable at the time of allocation, then they should ask themselves why they are making the application.
(unless of course there was a subsequent subdivision or changed use of land etc.)
I think SMO meant s 162(3) which provides that an order to appoint a managing agent can be made notwithstanding that no application for such appointment has been made, but only if the adjudicator is satisfied the scheme isn’t functioning or not functioning satisfactorily.
That is pretty self-explanatory, an application may be made in relation to something else, and on the basis of the facts presented the adjudicator may reach the conclusion that the scheme isn’t functioning/functioning satisfactorily, and determine a manager should be appointed.
It doesn’t really work like that – CTTT adjudicators can move in mysterious ways. While something may seem cut and dried to you, they may have a completely different perspective. A lot can depend on what you put in your application – when we went to adjudication a while ago I was painstaking in putting everything that we thought was relevant and backing it up, because you only have one shot at it and you can’t assume they have the same understanding of the issue as you (because they don’t). And there is also the wild card aspect – there have been some pretty nutty decisions of adjudicators subsequently overturned.
You need to bear in mind is that your view is your view – the fact that others may have different views doesn’t mean that your view is wrong, but it does mean that there is a difference of opinion. Until that difference of opinion is resolved, you can’t say either party is right or wrong.
Re Mediation – you don’t get a ruling at mediation, the aim of mediation is to bring the parties together with the aim of reaching a resolution. The mediator is there to facilitate that and they can’t take sides or make any rulings or conclusions of any kind. So things like the legality or otherwise of the by-law may be secondary.
Note that when you go to mediation the parties will be you and the Owners Corporation, it won’t be you and the individual owners. So the Owners Corporation will have to resolve to go to the mediation and authorise someone to act on their behalf, and also to reach an agreement with you, if they think that is appropriate. Of course they may refuse to attend which they are within their rights to do.
In your case, I suggest (as suggested by others) the easiest path is to go through the mediation step rather than then having to explain why you haven’t done that at the adjudication stage. If (as is likely) you don’t reach a resolution, then you can just quickly move on to adjudication.
To me, if you used that screen you would just be compounding the problem – you would have the washing and the screen.
When I use my clothes horse I put it up inside. Otherwise do as Kangaroo suggests and get a clothes dryer (even though I hate them).
You don’t have to go through mediation if you don’t want to, you just say you don’t want to. While it is encouraged, the OFT can’t force you.
However, it can count against you if you don’t do it, particularly if there is no evidence of you trying to sort it out prior to making an application.
I’m not sure now how much the roof work cost now, it was a few years ago. As for the sarking, we are looking at that now, the roof is in a bad state, I have two, possibly three ceilings that have to be replaced and my neighbour’s light fitting fell out of her ceiling because the roof leaks.
I am not saying it is the OC’s responsibility to bring the building up to BCA standards, but I believe in certain circumstances it should. Fortunately the owners agreed.
As it is common property you would need to get approval from the owners by resolution at a general meeting.
However – I had the same issue – I live in a 1930s block on the top floor and there was no insulation. There were times when it became very uncomfortable for me and my neighbour, to the extent that I got heatstroke on a day when it was 40+ degrees. We put it to the EC that the OC should install insulation as this was in accordance with current BCA requirements. And that is what they did, and the OC paid. They also vacuumed out the roof cavity which was knee-deep in dust, which was probably not very good for one’s health.
We don’t have any sarking in the roof either and that is next on the list.
I don’t think it is a long shot, I think it is the OC’s responsibility.
Dear me.
For a start, going back to the adjourned meeting, we have just had a very long and tedious discussion about the ins and outs of adjourned meetings.
The discussion can be found here:
http://www.flatchat.com.au/forum/another-day-in-paradise/no-quorum-at-agm/
For your purposes, you can’t turn up at an adjourned meeting with proxies and use them. Those proxies have to be in place at the original meeting. So it is arguable that the current EC is invalid.
So, you could say to this recalcitrant trio that their election was invalid, but it may be a bit of a waste of time arguing with them, because they sound like utter pains (not to mention very rude).
From what you have said, it sounds like your scheme is not functioning (and at least one of the issues you raise could have serious health and safety/liability issues) and you may likely have grounds to have a compulsory strata manager appointed. To do that you need to make an application to the CTTT. The advantage to doing that is it will take matters out of the hands of these people entirely, but it will also take it out of your hands.
Do you have a strata manager?
The way it works is that the type of resolution used to pass the by-law will be the type of resolution needed to rescind it. So for example if the by-law was passed with a special resolution, then you would need a special resolution to get rid of it. If the original by-law were passed with a resolution other than a unanimous one, the by-law would be invalid to the extent it requires a unanimous by-law to rescind.
In other words, like for like.
Hope that makes sense!
There is no problem with doing that, and the most appropriate place for that is in the financials – that is where we do it.
Otherwise to that extent the financials aren’t complete, you need to know the levies in arrears and who has not paid, just as you need to know any other debts owed to the OC. It isn’t a privacy issue.
Just a few things, although obviously Council approval is relevant.
– you say that the Committee passed a motion banning leasing of the units. PeterC may be able to enlighten us as to how it works in Canberra, but I would assume that anything like that would have to go to a meeting of all the owners to have any effect?
Did you get notice of the Committee meeting where they passed this motion? For something like that there should have been a notice with the intended motion on the agenda.
– re retrospectivity, as a general rule it applies from the time the rule applies, so any action that breaches that rule from that time on is a breach of the rule.
– the amount of money you may have spent furnishing the apartment isn’t really relevant.
If you’re really worried have you considered calling the people who did the inspection, their details would be on the certificate? They shouldn’t sign off unless everything is ok, they could be held liable.
Going back to the minutes as drafted by the Strata Manager, they are the minutes of the General Meeting which the owners attended and voted on. While it is difficult with minutes of annual meetings, because a year passes until there can be a vote on whether they reflect the proceedings of the meeting, that doesn’t mean that the draft minutes can’t be amended.
The Strata Manager drafts them, and then as best practice the draft minutes should be circulated to at least the Secretary of the EC to confirm whether they are accurate. That is what we do.
I don’t see why it should be solely up to the SM to determine what should be in the minutes, of course you can’t have endless arguments about them but if the minutes are incorrect to the extent simone42 says they are, then that is a concern.
I think I have mentioned before that some years ago a former strata manager of ours got the minutes incorrect in relation to the levies for the coming year – it was clear they had cut and pasted them from another scheme’s minutes, which meant that everyone’s levies were wrong. They told us that we had to call an EGM to change those minutes so we could change the levies to what they should have been in the first place, which is what we did, and that strata manager had the nerve to charge us for that meeting. They aren’t our strata manager any more.
It’s not a stupid question, it can be confusing.
In 2006, legislation was introduced requiring that lots in older strata instal smoke alarms and keep them in good working order. In summary, if you have installed a smoke alarm in your lot then you are responsible for it. If the smoke alarm was installed at the time the building was constructed, then the owners corporation is responsible for repair and maintenance of it, except for changing the batteries in it, which is the lot owner’s responsibility.
So the question for you in relation to your four properties is whether the smoke alarms were put in at the time of construction or whether they were put in by the then-owner. The strata manager of each should be able to tell you, as if the OC is responsible they should have a maintenance program and checks for them as part of their Annual Fire Safety requirements, whereby you get a certificate every year. This certificate has to be displayed on the notice board. When those checks are done a notice is sent out to all owners/residents advising if access to lots is required for the purposes of the inspection/checks – your property manager would get that if there was one.
In relation to the alarm that is hard-wired, I would guess that would be the OC’s responsibility?
You are paying $100 a year each for someone to check if the fire alarms are working and to change a battery (presuming they are your responsibility – it is your call as to whether that is too much or not. However, if you are paying property managers, you could expect them to provide you with advice that is pretty standard for their job, especially if they are recommending the fire compliance service (you have to wonder why).
The Department of Planning put out a Fact Sheet setting out all the requirements and how they work.