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Half a million dollars is a lot of money, if I were an EC member I would be very nervous about approving that kind of expenditure unless I were absolutely sure everything had been done properly.
This is what I think you should do:
1. Get the owners who support you, and write a letter to the strata manager as a matter of urgency. In the letter say this:
– the EC does not have any authority to enter into a contract on behalf of the Owners Corporation for rectification works, other than those ordered by the CTTT.
– if the EC enters into any other contract in relation to rectification works, you will hold the EC members personally liable in respect of that contract.
2. contact the CTTT in relation to your options, this may include obtaining an order such as an interim order preventing the EC from entering into a contract on behalf of the Owners Corporation, without the approval of the Owners Corporation.
You’re welcome!
You can get oil of cloves at the chemist, or go here http://www.oilofcloves.com.au. (no I have no association with that site!)
Only you would know how much of a security risk it would be to leave the window open, another option is bars for security. Again you would need OC approval, but they can’t really refuse that. Similarly if you were refused permission to put a fan in the bathroom you would have good grounds for saying they were unreasonable.
The tenant sounds pretty precious, if they are so intent on keeping the windows shut then no wonder there is a problem. Because of an issue we have had here, I know far more about damp than I have ever wanted to know, and it is confounding how people think that it is fine to have absolutely no air passing through. And then they wonder why it is damp.
Re the rewiring, I don’t really agree that the fan would have to come on with the light, that would drive me crazy, I like to be able to do the light and fan separately, because you don’t always need the fan, and I hate the noise they make. But that’s just me.
You sound like a very diligent landlord, most tenants would love to have you.
A primary cause of damp and hence mould is lack of ventilation. This is particularly the case in a bathroom. I don’t think it is unreasonable to ask a tenant to open a window to allow for ventilation in a room. As regards security, it isn’t clear what kind of window it is, can it be fixed so it can be opened to a point but no further?
More generally – it is a good idea to have a fan in a bathroom and I think current standards require that there be one in a bathroom (I might be wrong, feel free to correct me). Is there any way of putting a fan in a wall? Either way you would have to get OC approval.
Finally – were there mould problems in the bathroom prior to the tenant being there, because if not, this suggests that the tenant may be causing the problem, either by not opening the window or some other mysterious thing they are doing.
Incidentally – the most effective treatment for mould is oil of cloves diluted in water. It actually kills the mould spores.
The short answer is no, an adjudicator does not have jurisdiction to grant declaratory relief. They can make orders to settle a dispute or complaint, but that isn’t declaratory.
Re the notice to comply, what by-law did they say was being breached? Was it in relation to your communications, because I can’t think of a by-law that relates to that.
That isn’t a resolution for a number of reasons.
– for a valid resolution at a GM, you first have to have the proposed resolution put on the agenda, requisite notice given etc.
– that resolution is then put to a vote at the GM.
– you can’t make changes to a resolution other than those that don’t materially alter the resolution. So someone can move an amendment to a resolution to alter it slightly or clarify it, but you can’t change the substance of it.
– here the proposed resolution gave two alternatives, have the developer rectify the defects or get other builders to rectify the defects. The only possible resolution therefore is one of those options.
– the minutes record that it was resolved that the OC discuss the status of defects. Note that the resolution refers to the OC, not the EC. On its face, the minute of that resolution is wrong, as what you would expect to see recorded is that neither Option 1 nor Option 2 were approved.
– you don’t need a resolution to “discuss” something anyway.
– it sounds like the resolution wasn’t put to a vote at the GM. Is that correct? If so the minutes should record that there was no vote on the resolution.
– even if the GM had voted and resolved to go with Option 2, you would then need a separate resolution to raise the special levy.
If it were me I would be going back and asking the strata manager:
– why the minutes are incorrect.
– how a minute that records that the defects be discussed can be construed as constituting approval for engaging builders and raising a special levy.
If you have an order from the OFT for the developer to rectify the defects, then the developer should rectify the defects. It is understandable that the EC may not like the developer but if you have an order, you should follow through.
That is great news, long may it last!
A garage is not a habitable space for the purposes of the Building Code of Australia. Different building standards regarding things such as waterproofing, light and ventilation apply to habitable and non-habitable spaces.
You would need to consult a professional regarding the changes you would need to make to the garage that would meet BCA requirements for a habitable space. This may or may not be possible, or the changes required may be considerable. You would then need to apply to the Council for consent to use it as habitable space.
The question is not one for the Owners Corporation, although if you put a DA in to convert the garage, you would need to seek their consent.
What should have happened is that the landlord, having been told that KEB wanted to have a pet (or have a pet visit, it’s not too clear), then made an application to the EC/OC for permission for that pet to be kept, or to visit (whatever). The lease could have said, you can have a pet, subject to permission from the OC being granted. But that didn’t happen.
The landlord sounds like a tool.
On the changing of the by-laws front – where an OC changes a by-law to forbid the keeping of animals for example, that by-law can’t apply retrospectively. So any animals already there can’t be kicked out. Of course here there was no OC permission given, so you’re in a no-man’s land. If you haven’t already, put an application for permission in under the current by-law, if they refuse then you probably have grounds to say they are being unreasonable.
However – there is the lease, and I would be inclined to follow Jimmy’s advice and just stick it out. The worst that can happen is that you have to leave, and then you can take action against the landlord for the costs incurred because they breached a term of the lease.
I love that bit about smoking pets.
Adeze’s situation is pretty awful, it does sound like he/she should have initiated communication at a much earlier stage, but to be fair the actions of the strata manager/OC seem pretty extreme.
There is a fine balance in managing this type of issue – the OC needs to keep its finances in good order, and owners should pay their way. However, there are times when an owner may find themselves in financial difficulty. You need to draw a distinction between those who for a range of reasons are not able to meet their obligations for a time, and those who take a cavalier view towards paying the levies, and/or put them as a low priority.
In the latter category you have people who just don’t care, and can mount up substantial arrears. Particularly annoying are those who choose to go on overseas trips or renovate their apartments, and then cry poor. Then there are the absentee landlords. They are the ones who should be dealt with via a proper debt collection process.
I believe that if someone is in genuine financial hardship, and is proactive about managing the debt, there is little to be gained from penalising them and hitting them with ever-mounting fees and charges, it only makes the situation worse.
On the other side of the coin I have seen a number of cases where the strata manager has told the EC/OC they will take care of it, and they then proceed to gouge the hapless owner for any fees and charges they can think of. On the face of it, I would say that Adeze has been subjected to this, and I have a pretty fair idea who the strata manager is. There are a number of large operators who run a very lucrative sideline in strata debt collection, and in my view their practices are very dubious. The “legal fees” they charge for what are very straightforward matters, usually generated via pro forma, are exorbitant and cannot be justified.
We had an owner who some time ago owed $6000 in back levies. I found out that the EC had taken it upon themselves to progress legal action that at the time I found out had already cost $9000. That raised alarm bells because the person they were pursuing is a lawyer, and he could have easily challenged those costs as being excessive relative to the debt.
Bennifer – I agree with you that everyone should pay their way, but strata managers play the game for all its worth, they see this as a great way to make money, because they know that under the strata legislation the hapless owner will be liable for the costs, provided they are characterised as legal costs, therefore the EC/OC won’t question the costs. And in Adeze’s case, he/she has made genuine attempts to deal with the debt, there has been no suggestion that Adeze feels they shouldn’t pay.
The interest rate that currently applies to unpaid levies is 10%, this is well above any rate you would get if you invested money anywhere, so I think it is high enough.
Adeze – I suggest you contact the Law Society in NSW and also seek advice from either Legal Aid or a community legal centre. I would be seeking a very detailed breakdown of the costs incurred, including whether all of the charges can properly be characterised as legal fees.
As Whale has pointed out, the EC “decision” to get legal advice was not valid. It isn’t clear from what you have said but the proposed resolution would have had to be put on an agenda, and notice given, and then a vote taken at the EC meeting on that proposed resolution.
Notice has to be given of EC items, because that gives the other owners the opportunity to give written notice that they object to the motion (at least 1/3 of owners). Where this is done, any purported resolution is invalid.
In any case, it seems that the motion wasn’t put to a proper vote.
What I would be doing is serving them with a written notice, signed by all of the owners who object, that you consider what they doing to be invalid and that the EC members will be held personally liable for any of the legal fees incurred. In the letter set out the reasons why it is invalid. Serve that on the EC members, the strata manager and the lawyer who is acting for the EC. In all likelihood that should put a stop to it, at the very least the lawyer would think twice.
Some years ago some members of the EC went off on a frolic of their own, and contracted with someone for $10,000 worth of work (it wasn’t legal work). When the time came to pay it I refused to authorise it, because there had been no resolution, and they never tried that again.
I agree with Whale and Jimmy, your scheme sounds seriously dysfunctional, you need to make an application for compulsory appointment.
That’s right, in which case it is a GM, and there is no issue as to whether it is an EC meeting.
The concern here is that it was resolved:
“Future format for Executive Committee Meetings – It was proposed and seconded that any owners present at a meeting be invited to vote on any item on the Agenda”
In that case, you can’t turn the EC meeting into a GM by declaring it to be a GM at that time.
I agree with Jimmy – the Act sets out specific requirements for EC composition and procedure, you can’t override that with a by-law. Any decisions made in that way could be challenged.
Re the resolution that “any owners present at a meeting be invited to vote on any item on the Agenda” – this simply doesn’t work. If the EC is made up of 6 members, then the number of votes required to pass an EC resolution is determined by that number. If you have a situation where other owners present are invited to vote, some may vote, some may not – how would you then determine what the number of votes would be to pass a resolution?
You can’t declare an EC meeting to be a General Meeting – different requirements for notice and agenda apply to the two types of meeting.
As a general observation, a smaller EC is more effective and ideally an odd number of EC members is preferable, so you don’t have a tied vote.
To do that you would be asking the OC to give you exclusive use of the roof space which I assume is common property. Exclusive use is the simplest way of doing it, as putting it on title is much more complex and expensive. So:
– approval of giving you exclusive use of the roof space would require a special resolution by the owners at a GM.
– the usual and right way of doing that is to calculate the value of that space, minus the costs that you may incur in turning it into a usable space. You then pay the OC that amount. To do that you need a valuer, and you would pay those costs.
– you would need a special by-law to set out your exclusive use rights and responsibilities going forward. It is best to get a lawyer to draft that so it is clear.
– the issue re a DA is one for the Council and you should ask them. Just because an area is non-habitable does not mean you don’t need a DA.
That by-law is badly drafted. You don’t “keep” animals on the community property, so usually the by-law will say something about the keeping of animals in a lot, and then additional provisions about animals on the common property, i.e. how they must be controlled etc.
12.1 and 12.3 are inconsistent because 12.1 refers to community property and 12.3 refers to a lot.
Anyway – I am not sure your interpretation of it is right. If you go to the intent of the by-law, looking at it as a whole, it seems to be that an owner can’t keep an animal in their lot without written permission, and that when an animal is on the common property it has to be on a lead. This is because 12.3 refers to an animal being kept on a lot with permission, which presumes that permission must be given.
Perhaps the best option is to ask the strata manager, and at the same time I would point out the deficiencies in the by-law, because as it is it doesn’t make any sense. It should be amended to avoid confusion.
In this case the reason why there was no quorum was because only one person attended, and that person attended in their own right. As silly as it sounds, if they had held a proxy from someone else, then there would have been a quorum, because effectively two people would have been “in attendance”. Or they could have appointed someone else as proxy for one of their lots.
Note that the person attending can’t appoint themselves as their own proxy.
If you go back to the meaning of “meeting”, you can’t have a meeting with just one person. So as a general proposition a quorum needs to be more than one, subject to whatever a constitution/other governing document says, how many people are on an EC etc.
However, it is a moot point because the result would have been the same, albeit it is worth raising because of the penalties that have been applied.
Kangaroo raises some good points, why didn’t sancataldo attend, or send in a proxy? What is the levy for?