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For a start, an invoice of that type does not form part of your levies. So, the advice from the strata manager that failure to pay will mean you are unfinancial and unable to vote is incorrect.
If you want to deny liability, put your position in writing and make it clear that you will take it further. When you pay your levies make it clear that it is for the levies and not the disputed amount, because they may set off $312 against the repairs so you are short $312 on the levies.
I don’t think they can charge you interest on the amount, they certainly can’t under the Act because it isn’t a levy.
As a general observation, just because someone sends you a bill for something, it doesn’t mean you owe them the money!
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You can’t give proxies to anyone for a postal vote, you can only vote for, against or abstain/not vote. So if the strata manager was purporting to do that he was wrong. As I said there is effectively no Chair of a postal vote, because there is no “meeting”.
I know you are stuck in a bind here, but if the EC members are boycotting meetings then they should get off the EC. It is easy for me to say, reality is different, but I would go off my nut! Going back to what Jimmy said, you need to call a GM and get rid of them.
Yes it is recoverable against the property. For example, if an owner has a mortgage and is declared bankrupt, then the mortgagee takes over ownership of the property, together with the strata debt. When the mortgagee sells the property, then the strata debt has to be paid at settlement.
Your strata manager is not correct re writing off the debt.
Note that bankruptcy proceedings can be very expensive, and it isn’t clear whether all those are recoverable by the owners corporation. I would keep a close eye on what proceedings the strata manager is taking.
That’s right – there is no requirement to send the AGM minutes within a certain time. I don’t think there is a norm. When we do ours I tell the manager to send them to me in draft form so I can finalise them (I’m the secretary). In many cases they are not provided until the notice of the next GM.
Note that the actual minutes are subject to a resolution at the next meeting that they are the true and correct record of the proceedings and to that extent they are not finalised minutes, so if they are wrong then it would be good practice to send them out say within a month. We had one instance where the levies were recorded incorrectly in the minutes, and the stupid strata manager made us have an EGM to correct them at our expense, even though they had made the mistake.
You could put up a motion at the next GM providing that the OC will provide the draft minutes to owners within a certain time.
At least he/she is transparent about their fee structure. It isn’t illegal, and to me it is better they disclose it upfront.
There are no doubt other views, but insurance commission is frequently built into the strata manager’s fee structure, and represents part of their overall fee. What i mean by that is that if they didn’t receive that commission, then they would have to increase their fees elsewhere. What you need to look at is the overall fee structure, and the services you are getting for that. Cheaper is not necessarily better.
If it is a meeting in writing, then effectively there is no Chair, because there is no meeting in the proper sense of the word. It is pretty pointless being Chair of a meeting when it is being done by written resolution. I am not sure what having the votes returned to you would achieve, you could insist if you want to.
I suggest you have a “real” meeting and make sure you are the Chair, and also set the agenda.
I know your question is about the issue in getting a quorum for the EC, but to me there are two things.
1. the owner wanting to put in a timber floor – it is irrelevant whether he has a doctor’s certificate. What you need if you are to properly consider his request is full details of the floor he will be laying, the rooms in which he proposes to lay it, and how the floor will provide adequate sound insulation. This would include detailed specifications of the underlay. You would expect all that information to be included in the agenda for any EC meeting, together with the proposed resolution.
You may also want to consider a special by-law to make it clear that he is responsible for the floor going forward. That would require approval at a general meeting. At the same time you might want to consider dealing with the other owner who didn’t get approval.
2. EC approval of the request – we have an owner who has a habit of talking to various EC members separately, and then going to the strata manager and saying that the EC has said “it is ok”. Setting aside that none of the EC members have said “that is ok”, that is not how an EC makes decisions. In the end we had to write him a letter telling him that. Of course he still does it but at least we have it on record.
So the owner approaching individual EC members and getting signed approvals doesn’t meet the requirements of the Act.
You need a properly convened meeting, with notice given as required under the Act (72 hours, agenda with proposed resolution). You then need a quorum at the actual meeting, and then you need a majority vote.
A no vote does mean a vote against the motion, what else would it be? A no vote means – I do not approve the motion. You can have three types of “action” – a vote for, a vote against, or an abstention. An abstention doesn’t count towards the vote, as Jimmy has said, it signals that you don’t want to vote on the motion.
From what you have said, it doesn’t sound like there has been a properly convened meeting anyway (I could be wrong), and there has been no decision.
You have said you are the Chair, Secretary and Treasurer. Perhaps you need to exercise a bit more control – it is hard, but it is better than your current situation. Tell the other EC members that no decision has been made, that a proper resolution with full details of the request needs to be put up by the owner, to be considered at a proper meeting. If the EC members don’t turn up then too bad, the owner will just have to wait.
You can have a decision made by written resolution under Schedule 3, clause 10.
10 Voting in writing by members of executive committee
(1) A resolution is taken to have been validly passed even though the meeting at which the motion for the resolution was proposed to be submitted was not held if:
(a) notice was given in accordance with clause 6 of the intended meeting, and
(b) a copy of the motion for the resolution was served on each member of the executive committee, and
(c) the resolution was approved in writing by a majority of members of the executive committee.
(2) This clause is subject to clause 11 (2).
The strata roll must contain names and addresses for the owners. Note the address does not have to be where they live, it is an address for the purpose of service of strata correspondence etc. So if you were not given the addresses you should ask for them. Email addresses and phone numbers are not recorded in the strata roll.
The person/entity who can vote is the person recorded in the strata roll, i.e. the owner. An owner can give another person their proxy for the purposes of voting, and they can also nominate another person to be a member of the EC. So there is no issue with an owner giving his wife a proxy to vote at an AGM, or nominating her to be an EC member. It wouldn’t matter if they were married or not, so if the proper procedures were followed there is nothing wrong with her being on the EC and being Treasurer.
In terms of signing off on contracts, again provided she had the delegated power to do that, then there is no issue. You could ask to see the records of any decision giving her the authority to do that on behalf of the EC/OC.
I think one of the first things you have to answer is the link between the works on the common property and the tenant moving out, or having a reduced rent. You may have works to common property that mean that the lot is uninhabitable, or the amenity of the lot has been reduced to an extent for a period of time. The works may not affect the amenity of the lot. So – what are the works, and how do they affect the lot?
The strata manager is talking rubbish. You are entitled to see the strata roll and make copies of it under section 108, refer below. The strata roll must include the names and addresses of the owners, section 98.
Tell the strata manager that he must allow you to see and copy the strata roll, and if he doesn’t you will contact the Department of Fair Trading.
See also this recent case:
https://www.austlii.edu.au/au/cases/nsw/NSWCTTT/2013/45.html
108 Inspection of records of owners corporation
(1) Who may inspect records?
An owner, mortgagee or covenant chargee of a lot, or a person authorised by the owner, mortgagee or covenant chargee, may request the owners corporation to allow an inspection to be carried out under this section.
(2) Form of request
The request must be in writing and be accompanied by the fee prescribed by the regulations.
(3) Items to be made available for inspection
The owners corporation must make the following items available for inspection by the person who makes the request or the person’s agent:
(a) the strata roll,
(b) any records or documents required to be kept under Division 2,
(c) the plans, specifications, certificates, diagrams and other documents required to be delivered to the owners corporation at its first annual general meeting by the original owner or lessor,
(d) if in its custody or under its control, the certificate of title comprising the common property or, in the case of a leasehold strata scheme, the certificate of title for the lease of the common property,
(e) the last financial statements prepared,
(f) every current policy of insurance taken out by the owners corporation and the receipt for the premium last paid for each such policy,
(g) any other record or document in the custody or under the control of the owners corporation,
(h) if the duties of the owners corporation under this subsection have been delegated to a strata managing agent, such other records (including records of the strata managing agent) relating to the strata scheme as may be prescribed by the regulations,
(i) if a caretaker agreement is in force or has been entered into but has not yet commenced, a copy of the caretaker agreement.
Maximum penalty: 2 penalty units.
(4) Inspection to take place at agreed place and time
The inspection is to take place at such time and place as may be agreed on and, failing agreement, at the parcel at a time and on a date fixed by the owners corporation under subsection (5).
(5) Time and place of inspection if agreement not reached
If an applicant and the owners corporation fail to reach an agreement within 3 days after the owners corporation receives the application, the owners corporation must immediately send by post to the applicant a notice fixing a specified time (between 9 am and 8 pm) on a specified date (not later than 10 days after the owners corporation receives the application).
(6) Copies of documents may be taken
A person entitled to inspect a document under this section may take extracts from, or make a copy of, the document but must not, without the consent of the owners corporation, remove the document from the custody of the owners corporation.
Yes – as an owner you have a right to a copy of the strata roll. All you need to do is contact the strata manager and ask for it. They may charge you a small fee for it. They must provide it to you within 10 days of you making the request.
Gosh they sound like very interesting strata managers, I wonder whether they were asleep when they did their training.
It would be worthwhile to also write the EC and strata manager a letter, while you are getting your act together with the CTTT.
Forgot to say – it would be almost impossible to bind future owners, unless you put a covenant on the lot, which would then have to be registered at the Land & Titles Office.
Off the top of my head, as regards laying carpet on top of a wooden floor, I would say no, because the wooden floors would conduct sound downwards. But I’m not an expert. Did you get expert advice as suggested?
More generally – it is understandable that you have had a lot of stress and you want a resolution. The question is, do you trust the other owner, taking into account what has occurred to date? I wouldn’t, but that’s me. Even if you do negotiate with the owner, there are a lot of things up for debate, starting with where he is going to lay the carpet.
If the owner has contacted you to settle, this may be an indication that he believes his chances at the CTTT are slim. If you want to have a resolution that deals with all your concerns, I would be inclined to proceed with the CTTT, on the basis that you will likely succeed and will then have an order that the owner can’t avoid.
if you don’t want to do that, at the very least get a lawyer to draw up a legally binding agreement, because otherwise any resolution you reach with this owner will be as useful as a chocolate teapot. Asking people on a forum to do that sort of thing is not a good idea.
Yes you do, at least for pest treatments. Five days notice is required, refer here:
https://www.environment.nsw.gov.au/resources/pesticides/07225multioccupancy.pdf
Not sure re other types of chemicals, but I would err on the side of caution, as Jimmy says, there is general duty of care.