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Yes. People often get so caught up in something, they completely lose sight of the original reason it started. That is, they become addicted to the dispute.
A former Chief Justice of the Supreme Court said to me that once people start talking about the principle of the thing, they have lost all objectivity. I think that is very good advice.
No – unless you specifically requested it in scope of instructions, it is not the responsibility of the conveyancer to obtain a copy of the management agreement. It is up to the purchaser to make their own enquiries. Of course the purchaser can ask someone to do that for them, but they have to specifically ask. In a conveyancing scenario the primary concern is whether you are getting good title.
If I were you I would get a strata lawyer to have a look at that management agreement, I bet they could find a number of holes in it.
1. Is the balcony common property – have a look at the strata plan and that will tell you whether the balcony is common property. Or you could ask the strata manager.
2. Even if it isn’t common property, I think you would need approval as it probably affects common property and alters the appearance of the lot.
3. I don’t know how long ago you requested permission, but go back to them and assuming you have given them all the information they need, put a timeframe on it, e.g. one month, and tell them if you don’t get a response you will make an application for mediation and then possibly adjudication.
One issue there is whether you can apply for adjudication where an OC has failed to make a decision either way, refer section 140. In this case they haven’t refused consent, they have just failed to make a decision.
140 Order relating to alterations and repairs to common property and other property
(1) An Adjudicator may order an owners corporation to consent to work proposed to be carried out by an owner if the Adjudicator considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following:
(a) alterations to common property directly affecting the owner’s lot,
(b) carrying out repairs to common property or any other property of the owners corporation directly affecting the owner’s lot.
The thing is, I don’t think the strata manager has the delegated power, so I agree with your strata manager. Your delegation refers to “work associated with” and “issuing notices”, it doesn’t refer to the strata manager exercising the function/power of the EC, i.e. the EC making a decision/resolving to issue a notice to comply. Note 1 of the proforma refers to the EC holding a meeting and deciding to issue the notice and recording that decision in the minutes
If the strata manager had that power/function you would expect the delegation to be expressed as something along the lines of:
“Exercising the function of the EC to determine to issue a notice to comply with a by-law”.
Determining to issue the notice and issuing the notice are two separate things – I think your strata manager has the delegated function in relation to issuing the notice subsequent to a decision of the EC to do that, that is the “work associated”.
An EC can determine to issue a notice to comply by email, we have had legal advice that that is fine but you would only do that if it were urgent, as you are missing the notice step.
One query – if a strata manager is exercising the function of the EC either in relation to specific functions or more generally, surely the notice provisions still apply? In the case of compulsory strata managing agents notice is still required to be given.
Just to clarify, as Jimmy has mentioned, there are two separate things an owner can do:
– give their proxy to someone to vote at a general meeting
– nominate someone to be a member of the EC – that can be anyone
If you give your proxy to someone to vote at a GM, that can’t be used to nominate someone to the EC. If you want to nominate someone to the EC, this is a separate requirement that needs to be put in writing or if the owner is at the meeting, they can nominate the candidate in person. I have had to point this out quite a few times at meetings, it drives me crazy!
My first thought on reading this was liability. If you were to set aside an area for children to use as a play area you would have to review your insurance to ensure you were covered, and it would likely increase your premium. Also you would probably have to check with the Council. It seems ridiculous that you have to be so cautious, but unfortunately I think if you are designating something as for use by children, that is what you have to do.
I differ from Jimmy in that I think if a common property area is to be allocated for a specific use, then it most probably would require a special resolution, because effectively you are preventing others from using it for other purposes. For those who don’t have children it would be reasonable for them to say they are being deprived of the use of that area, or that others are benefitting in a way they are not.
That is ironic because as Anna says, the area is little used. I used to live in a block of flats where I put up a resolution to grant exclusive use of the top of some back storage areas, which effectively were balconies coming off the windows of two lots. The other owners said no way would they allow that – which was really stupid because no-one could access those two spaces except the respective owners.
It is a nice idea, so rather than designating it for children why don’t you put up a suggestion for landscaping and putting in the fences, as a general improvement and amenity for everyone. Surely no-one would object to that, and that would only need to go to the EC.
People who threaten legal action/solicitors are usually blowing hot air out of various orifices. The simple solution for the person is to stop doing what they are doing.
That’s tricky – my first thought was the SM could go ahead, but there is that thing at the end re EC instruction. It looks like the SM has authority to do a range of tasks/functions associated with managing the scheme.
The strata manager doesn’t have delegated authority to make decisions on behalf of the EC, and it is very important when issuing a notice to comply that you tick all the boxes, or you won’t be able to enforce it at the CTTT. To issue a notice to comply you must have a resolution of the EC (or the OC at a general meeting). What bothers me is that the A2 doesn’t specifically state this is delegated to the strata manager. And the manager doesn’t think he has that power.
Go ahead and have the meeting. It doesn’t take long to do the agenda etc. The SM can help with that.
I think the Crazy Swede’s concern is that people have been told the building is pet friendly, and they have assumed they can have a pet without first seeking permission. In the case of a by- law like that the resident is in breach because they don’t have permission. It puts the OC in a difficult position. In some cases they might want to refuse permission, on reasonable grounds, say if someone wanted to keep 3 pit bulls.
The strata manager should have circulated the by-laws after they were registered and set out the processes that apply clearly. Otherwise there is no point in having the by-law.
The EC should require anyone who has a pet to apply for permission, and if they don’t, issue a notice to comply. Going forward send out a notice to all owners and residents telling them what the by-law requires.By the way I have a dog. We did refuse permission to one potential tenant who had two very noisy dogs.
On its face, there is nothing wrong with the copy of the by-laws. You wouldn’t expect to see the copy lodged with the Department, notation of fees, registration etc. We have a copy of the by-laws on our notice board that I think dates to the 1970s or 1980s, it just lists the by-laws. Yes it would be reasonable to have the strata plan identified on the document but can I suggest that you focus on substance over form.
Similarly it is not unusual that by-laws are the standard by-laws set out in Schedule 1, that just means the scheme hasn’t put in any additional by-laws. We haven’t, so we just have the standard set. Our scheme dates to1962.
I suggest you not waste time at the Department of Lands at this time, inspect the strata records and then identify any substantial issues. You will be able to to tell from the minutes whether any additional by-laws have been implemented.It is highly unlikely that there is no management agreement, because the strata manager would be breaching the law. Section 27 of the Act provides that the manager must be appointed by an instrument in writing authorised by a resolution at a general meeting of the OC.
Also if there were no agreement, then the strata manager couldn’t be paid.
An EC has to have a Chair, a Secretary and a Treasurer. Under section 29 of the Act, those functions can be delegated to the strata manager, but even if they are, the Chair, Secretary and Treasurer (the EC members) can also exercise those functions.
If the functions have been delegated to the strata manager, this must be set out in the management agreement, section 29(1).
No offence, but your co-owners sound a bit silly.
$15K is a lot of consultancy, that is just silly.
I think what might have happened is that the motion re EC spending was on the agenda, and there were no limits placed on EC spending. However, as Whale says, if it wasn’t on the agenda then that is a serious matter.
I completely agree with Whale’s comments re strata managers. The low standards and general misbehaviour of a number of them raised in this forum confound me. We have had our share, I have despatched three of them to date, but we seem to have now found one who is good. When we terminated the last one they said I was too demanding.
There is very little in the legislation to hold strata managers accountable, there should be. This was something that got scant attention in the recent review. If they were more accountable, strata management would probably cost more, but the standards would likely be higher.
How it works is a bit complicated, but generally, the insurance broker pays a commission to the strata manager. I believe this is capped at 20%, if that is wrong someone feel free to correct me. Apparently this commission is funded out of the fee that would be payable to the insurance broker, so in that sense the OC is not paying the commission (although obviously it is built into the price of the premium). Within the ambit of fees that the OC is paying the strata manager, this wouldn’t need to be disclosed in the accounts.
If a strata manager is to receive a commission this must be disclosed in the strata management agreement.
This is assuming you are using an insurance broker, this applies in most cases, apparently they get better deals. An OC can arrange insurance directly but this doesn’t mean it will get a discount reflecting non-payment of a commission.
Strata managers argue that if they didn’t receive this commission then their strata management fees would be higher, and that is likely, generally strata management fees are not that substantial by themselves.
I am not an apologist for either strata managers or insurance companies, but personally the commission doesn’t really bother me.
It is reasonable for you to ask how much the commission is, i.e. the percentage, at least so you know that it is under the cap.
You seem to have a much broader problem, in that your strata manager has far too much control of the OC generally. From what you have said, the OC has delegated office bearer responsibility to the strata manager, is that right? At the AGM did you volunteer to be on the EC and be secretary or Chair?
The AGM minutes should note who was elected to be Chair, Secretary and Treasurer and owners have a right to know who these people are.
There is nothing stopping you lending AGM documentation to someone.
You have the right to copy strata records.
Strata managers receiving commissions on insurance is pretty much standard and is dealt with in the contract. Is there something about this that bothers you specifically?
Have you asked the secretary of the EC for the contract?