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It can depend on the size of the scheme – we get quarterly updates showing all money coming in and all going out, how else can you track the state of finances and plan accordingly? For a larger scheme monthly would be sensible but this should be agreed with the strata manager. There is nothing wrong with them charging for financial reporting, it is a service.
If you have had to raise a special levy to pay the insurance this raises questions about the strata budget. Insurance is an expected expense, it happens every year. In strict terms it is not appropriate to strike a special levy to pay for that. If the strata manager and EC are not making allowance for insurance in the annual budget then perhaps you should look for a new strata manager.That isn't a reason. There are plenty of cases on this. Go back to the EC and set out the by-law, pointing out that the onus is on them to give a reason if they wish to refuse permission. The standard by-law is that a resident can't keep a pet without permission of the EC, and that permission cannot be unreasonably refused. From what you have said it is likely that is what your by-law states.
We used to have the 10% discount and then resolved (by special resolution) to rescind it. The discount had been suggested by our then strata managers who were not very good and used it to promote themselves, i.e. we can get you a discount on the levies. This is misleading.
It is my understanding that you don't require a by-law, the legislation just requires a special resolution that operates until it is rescinded. If a by-law were required the legislation would say so.
There were a number of reasons why we rescinded the discount but these are/were some of the considerations:
1. the benefit is illusory. If you have a budget of $100,000 for the coming year, i.e. that is how much money you will need, then you have to then factor in the effect of the discount. If everyone pays prior to the due date, you will be $10,000 short on the budget so you will have take that into account in setting the budget and increase the budget to $110,000. Effectively then, there is no discount.
2. a discount has little or no effect in making people pay on time. People who don't pay on time are not going to change their ways because of a 10% discount.
3. conversely, a discount for those who pay prior to the due date unfairly benefits those owners, as owners who pay on or after the due date are then subsidising the former. Why should someone who pays one day before the due date receive a discount, when a person who pays on the due date or even one or two days or a couple of weeks later does not?
Bear in mind that the standard 10% interest charge does not apply to levies until one month after the due date, i.e. you have one month to pay.
More generally – I am in a small strata where overall we don't have that much of a problem with levy payments. There is one owner who habitually falls behind, sometimes for more than a year, but they always pay – eventually. Our view is that as they are paying 10% we are getting a better return on the money than we would if it were invested. Obviously circumstances differ from strata to strata, and if you are in a larger complex where half or more are behind on payments that would be a nightmare, but a discount is not going to change anything.
Oops sorry that case went on appeal, so have a look at this one also.
Symes v The Proprietors Strata Plan No 31731 [2003] NSWCA 7
You don't say where the rising damp is, I presume it is in the enclosed area that was originally shown as a patio?
Setting that aside, there are two issues at the outset – is the area of the rising damp common property, and what is causing the rising damp. The common property issue may be affected by the original council approval but the more important thing is what is showing on the strata plan.
The opinion of the EC members is not really relevant if the owner takes the dispute further, because the EC members are not qualified to determine that. The EC should engage some experts to determine the cause of the rising damp (struggler is right) and then look at the common property issue. The question there is, are faults in the common property causing the rising damp?
It may be that the failure to obtain council approval would be a factor, but then you have to look at a number of things such as is the area being used as a habitable room, and would the council give approval for that now. You can ask a council to approve a structure, or part of a structure, that has not obtained approval. As long as it meets council requirements the council would likely give that approval.
This case has some similar facts, it's complicated but worth reading.
Symes v SP 31731 [2001] NSWSC 527
Also you would usually do that where you were doing something like slicing off a piece of land that forms part of the common property.
Note that to pass a by-law that will deprive others of the use of common property you need the written consent of all the owners, refer section 52. In this case, from what has been outlined, this hasn't occurred.
It is confusing but they aren't contradictory. Section 110 refers to a situation where you subdivide the common property and create a new lot or lots (so it is no longer common property), which is then transferred to another party. That is a far more complicated process, you need to register a new strata plan and transfer of the lot, and certify that the owners corporation has passed a special resolution to approve the transfer. I doubt very much if that was done in this case.
Therefore you would usually go the exclusive use route because it is much simpler.
Technically common property isn't sold to a person, they are granted exclusive use of it. To do that the owners corporation needs to be approve a special by-law, and that has to be by way of a special resolution. Ordinarily the by-law will have conditions attached to it relating to the person who has exclusive use being responsible for its maintenance etc.
The by-law also has to be registered. Was a by-law passed by special resolution and if so, was it registered? I would check the minutes as a matter of urgency. You should also check the financials to see if the $12,000 was paid. If there was/is no by-law then query whether the person has the right to exclusive use of that area.
Where someone is being given exclusive use of a part of the property usually a valuation is done, taking the improved value and deducting the cost of any improvements the person has done to it – the difference should be paid to the owners corporation. This is because the common property is owned by all the owners and therefore they should be compensated for no longer having use of/entitlement to the area.
The whole thing does sound dodgy, but I think there was a quorum because the treasurer had the proxies. The question then is was the meeting properly convened, was there a special resolution etc? The other strange thing is on the strata plan you had 2 years ago, this was showing as common property and you bought on that basis, so what is the strata plan showing now? Was that strata plan provided to you by the vendor, because you could also have a right of action against them.
This is the section of the Act dealing with exclusive use.
52 How does an owners corporation make, amend or repeal by-laws conferring certain rights or privileges?
(1) An owners corporation may make, amend or repeal a by-law to which this Division applies, but only:
(a) with the written consent of the owner or owners of the lot or lots concerned and, in the case of a strata leasehold scheme, the lessor of the scheme, and
(b) in accordance with a special resolution.
(2) A by-law to which this Division applies may be made even though the person on whom the right of exclusive use and enjoyment or the special privileges are to be conferred had that exclusive use or enjoyment or enjoyed those special privileges before the making of the by-law.
(3) After 2 years from the making, or purported making, of a by-law to which this Division applies, it is conclusively presumed that all conditions and preliminary steps precedent to the making of the by-law were complied with and performed.
You are entitled to put up any motion you like for consideration and voting at the AGM. So the answer is no – the Secretary cannot refuse to put a motion on the agenda, and whether or not it is reasonable is not relevant. You could put up a motion to paint the building pink if you wanted to – whether or not it would be passed is a separate issue. Refer para 36 of Schedule 2 of the Act set out below.
It is then up to those attending at the meeting to discuss and vote on it. So draft a requisition for motion and send it to the secretary and tell them that you expect it to be included as required under the Act. You could draft it as the approval being subject to obtaining satisfactory quotes and any necessary reports, to be signed off by the EC, i.e. delegating final approval to the EC.
36 Requisition for motion to be included on agenda for general meeting
(1) Any person entitled to vote at a general meeting of an owners corporation on a motion that does not require a unanimous resolution may, by notice in writing served on the secretary of the executive committee, require inclusion in the agenda of the next general meeting of the owners corporation of a motion set out in the notice and the secretary must comply with the notice.
(2) The secretary must give effect to the requirement of the notice.
(3) Subclause (1) does not require the inclusion of a motion on the agenda of a general meeting for which notices have already been given in accordance with this Schedule but in that case the motion must be included in the agenda of the next general meeting after that.
She sounds like a nightmare. Has proper notice of the EC meetings been given? Whale is right – when notice is given owners with entitlements exceeding 1/3 can oppose any motion before the meeting is held/decision is made.
At the next AGM make sure you attend and that you and at least one other owner nominates for the EC. If you can't attend you can nominate in writing. Set the membership of the EC at 3, that way she won't be able to unilaterally make decisions, even numbers are not a good idea on the EC. If that is not possible for whatever reason, you could consider limiting the decisions that can be made by the EC, which is a standard resolution at the AGM. Of course that can limit the EC's operation but you can be creative. For example, it could provide that applications can't be lodged with the CTTT without a certain vote of the EC, i.e. more than 1. CTTT applications cost money!
I have a dog and love animals, I don't have a problem with animals living in apartments. However, you have been keeping a pet when the terms of the lease specifically said no animals. The same thing happened to me a few years ago when I had tenants and they had a cat which they tried to conceal, I thought it was quite funny as I wouldn't have had a problem in them having it, it was a lovely cat. All they had to do was ask but they put themselves in the position of being in breach of the lease terms. When someone does something like that it tends to get people's backs up, so you have created the problem.
You can't make an application to the OC, you don't have standing because you're not an owner. The only way you could get permission is to ask the owner for permission and then the owner has to apply to the OC, so you need two stages of approval.
If you think the owner won't have a problem with animals (it is usually a standard term of a lease to exclude animals) then you could try that route, but otherwise perhaps you should monitor the situation and think about moving.
There are two separate issues here:
1. as a general rule can the EC seek legal advice without the approval of a general meeting – yes, provided it comes within the ambit of the regulations, e.g. the costs are under a certain amount.
2. can an EC seek legal advice/take legal action to overturn a caretaker agreement under section 183A which has been approved by the OC at a GM? No it can't, because the agreement has been approved by the OC. If an EC tried to take legal action it would be seeking to circumvent that resolution and would be spending that money for an improper purpose. If the EC could do that they could interfere with all decisions made by the OC at a GM.
You need to go back to a GM or individual owners should make an application to the CTTT.
We (EC) have done this – the EC resolved to take legal advice when an owner threatened to take legal action against us. We were within the scope of the Regulations so that is/was fine, you need to get a costs agreement from the solicitor at the outset. Preliminary legal advice should cost well under the amounts set out in the Regs and then the solicitor can advise you from there as to what steps you need to take to ensure you comply with the legislation.
In our case we monitored the costs being incurred and put a motion to the next AGM in relation to the legal services that was passed, as the matter is ongoing.
It would be ridiculous if the EC couldn't do this as otherwise it would be in a position where it would not be able to respond to a legal letter or any threatened legal action. Note that there is a difference between getting legal advice and taking legal action. Taking legal action is pretty serious and can cost a lot of money, and an EC would be ill-advised to resolve to do that at EC level.
In this case it seems you want to overturn a resolution approved at a GM and that is different. I believe that you should go back to a GM, as the EC can't override that decision. Query whether it would be appropriate for the EC to seek legal advice in those circumstances. Another option is for specific owners to make an application to the CTTT, as distinct from the EC, the members of the EC can do that in their capacity as owners. You don't need GM approval for that.
Ok then. A decision to do specific work doesn't absolve the OC from its responsibility under section 62 to carry out any other works that may be necessary, so whomever is telling you that this has to be done first is not correct (based on the information given).
A special resolution doesn't give something special priority, it just means that the resolution needs a particular level of vote. Of course, there may be all sorts of permutations – for example the specific work may be necessary before other work can be carried out although it doesn't sound like that is the case here. Also – it may have been decided as part of the special resolution to raise a special levy that relates to the works, but that is unlikely as a special levy doesn't require a special resolution. The special resolution was likely to relate to the exclusive use.
As noted above the OC still has responsibility to carry out any other necessary works and should have money in its sinking fund to do those. If not, it will have to raise more money. I would go back to whoever has told you this and remind them of the OC's obligations under section 62 and ask them why they are not being met. There are cases on this including a woman who went to the CTTT to get an antenna fixed because the OC told her other works had priority. She got the antenna fixed.
It's not clear from the original post what the special resolutions are, they may or may not be by-laws. From what you say it sounds like the special resolution relates to specific work being carried out? In any event, if there are other works that need to be done urgently then the OC can't delay those works just because the works the subject of the special resolution haven't been done. The OC may need to raise additional money, or use money it currently has, but generally it can't delay work if it is required. This is particularly the case if damage is occurring or possible liability issues.