[el capitan]

Jimmy-T wrote:

Wish I’d known that when our former strata manager at Notstrata refused to provide the strata roll to the secretary because it was “private” and the then strata commissioner declined to say who was right and who was wrong.

Yeah, it took some finding, but I knew I’d seen it somewhere!

It doesn’t seem to be in many searchable locations, hence me going to the trouble to post an answer here with the wording.

It’s a further sign about how legislatively-complex Strata is as so many Acts impact on how the “system” is run – I’m a geeky owner/committee member/licensed strata manager and I get lost sometimes!

[el capitan]

s38(1) of the Property, Stock and Business Agents Regulation 2014 (NSW) states:

A strata managing agent must permit, on demand made at any reasonable time, any member of the executive committee of an owners corporation, community association, precinct association or neighbourhood association for whom the agent acts as managing agent to inspect any records or books of account of the corporation or association.

and s43(1) of the Property and Stock Agents Regulation 2022 (NSW) states:

A strata managing agent must permit, on demand made at a reasonable time, a member of the strata committee of an owners corporation or the association committee of an association for which the agent acts as managing agent to inspect the records or books of account of the owners corporation or association.

Making clear that (since 2014) a Committee member of a Strata Scheme can access all records of the owners corporation held by the strata managing agent at no cost.

No exceptions, exemptions, or approvals apply.

This seems reasonably under-represented in Google results (hence this “late” response), maybe because people think only the Strata Schemes Management Act 2015 and Strata Schemes Management Regulations 2016 apply.

Nope, we Strata Managers have many Acts and Regulations which apply to us.

Transparency is good 🙂

[el capitan]

Hmm – decisions, decisions.

Today is deadline day to add items to our agenda. I worry what behaviour might be triggered by the proposal to have the code of conduct, given any problem people could just say they’re not going to sign it. Our OC is small enough that we need “all hands on deck” as far as willing participants for the SC goes – this includes people whose behaviour has been less than ideal historically.

I can imagine one argument: “If someone doesn’t sign up for the CoC, we can’t name them for breaching it as they haven’t signed up for such a process.”

I’ve decided to hold it in reserve for the next AGM based on the next year’s behaviour. In the meantime, I just have to get better at calling out bad behaviour when it happens.

El Cap

[el capitan]

Unfortunately, Lady Penelope, in NSW we can’t require signing up to the Code of Conduct, we can’t enforce beyond “naming” miscreants. It really is about encouraging and supporting good behaviour rather than enforcing it.

In my situation, I’m happy to put miscreants on notice that their behaviour is frowned upon, knowing it may not have any real impact in the end. At least it shows all owners how things should be run, and shows there’s widespread support for better behaviour from the miscreants (if the motion passes).

El Cap

[el capitan]

Current form, please provide any thoughts:

The Owners – Strata Plan No. xyz – Motion for Adoption of Standing Orders and Code of Conduct for Strata Committee (Special Resolution)

Description: in the interests of creating a productive and positive environment for the operation of the Owners Corporation and its Strata Committee, the included Standing Orders and Code of Conduct are proposed to guide the Strata Committee in its day to day activities.

That The Owners – Strata Plan No. xyz SPECIALLY RESOLVE pursuant to Section 108 of the Strata Schemes Management Act 2015 (NSW) to make an additional by-law in the following terms:

Special By-Law No. x – Standing Orders and Code of Conduct for Strata Committee

1. Standing Orders for Strata Committee Meetings 

Strata Committee meetings of the owners corporation will be conducted under the terms of the Standing Orders affixed to this by-law as Annexure A.

2. Code of Conduct for Strata Committee Members 

Lot Owners nominated to be elected to the Strata Committee will be requested to indicate their agreement to be bound by the Code of Conduct affixed to this by-law as Annexure B by signing and dating a copy of the Code of Conduct when they are nominated for election to the Strata Committee.

If a nominated Lot Owner has previously signed a copy of the Code of Conduct, they are considered to have done so for subsequent nominations.

Annexure A

Standing Orders for Strata Committee Meetings of Strata Plan xyz

1. A committee meeting may not commence until the quorum of attendance (50 percent of the committee membership as decided at the previous AGM) has been reached. An Acting Member may not count towards a quorum.*
2. The meeting must be chaired by the elected Chairperson unless they are absent or unable to do so, in which case the committee must elect a Chair for the duration of that meeting.*
3. Voting on committee matters is by a show of hands with each member carrying only one vote (unless a member who cannot attend has appointed another member as an Acting Member).*
4. The committee must have agreed to allow the appointment of an Acting Member before their vote can be counted. A simple majority of the committee in attendance can choose not to allow the appointment of an Acting Member if they so wish.*
5. Members can be considered to be in attendance if they are present by telephone, video streaming or other electronic means.*
6. The committee must allow non-committee members to attend the meeting but they are only permitted to speak if a majority of the committee agrees.*
7. The committee may decide by a simple majority whether or not non-committee members should speak only on specific items on the agenda or on any or all agenda items.*
8. In a tied vote, the Chairperson does not have a casting vote and any motion will be considered not to have been carried if it remains tied after a re-vote.*
9. The Chair should make it clear to non-committee members that they are bound by the committee’s agreed Code of Conduct and Standing Orders.
10. The committee will consider the items on the agenda in the order in which they appear unless a majority of the committee agrees to change the order at the meeting.
11. The Chairperson will allow each participating member or attendee to speak only once on a topic until everyone who wants to speak has had a chance to do so. The same restriction will apply after each time an attendee speaks.
12. After discussions, and before a vote, the Chair will call for anyone who wishes to raise a point that has not already been discussed, to do so.
13. Attendees and members who interrupt, talk out of turn or talk over other members may be warned verbally that their behaviour is not acceptable.
14. If the behaviour is repeated despite a warning, the Chairperson can call for a vote of the committee to ‘name’ the miscreant in the minutes of the meeting. A motion to call for such a vote may be also moved by any committee member and the vote will be held if the motion is seconded.
15. The Chair can also propose a vote to ‘name’ any member or attendee who breaches the agreed Code of Conduct, specifying which item in the Code of Conduct has been breached. A motion to call for such a vote may be also moved by any committee member and the vote will be held if the motion is seconded.
16. The meeting will be called to a close after the final item has been discussed and voted upon.
17. Any items not on the agenda can only be discussed informally and no vote should be taken or recorded.* 

*Items 1 to 8 plus 17 are part of NSW strata laws or regulations.

 

Annexure B:

Code of Conduct for Strata Committee of Strata Plan xyz

I agree to serve on the strata committee for Strata Plan xyz and to be guided by the following principles:

1. To attend and participate in all meetings to the best of my ability to be present.
2. To respect the agreed Standing Orders at all meetings and to participate in a business-like manner.
3. To accept the committee’s majority decisions, even if I disagree.
4. To promote the goals and interests of the strata scheme in a constructive manner. To avoid creating unnecessary conflict among homeowners.
5. To disclose to the committee any financial conflicts of interests.
6. To conduct myself in a civilised and polite manner regardless of how heated discussions become.
7. To refrain from personal attacks on other committee members, owners or tenants and to avoid language that is racist, sexist or otherwise discriminatory.
8. To do my best to ensure that the Owners Corporation’s finances are well managed.
9. To uniformly enforce, without fear or favour, the by-laws of the strata scheme and the laws and regulations enshrined in the Strata Schemes Management Act 2015 and Strata Schemes Regulations Act 2016.
10. To do my best to acquaint myself with the fundamental strata rules and regulations enshrined in the above by-laws and legislation.
11. To place the best interests of the strata scheme above my personal interests; the interests of a particular homeowner; or the interests of a faction of homeowners.
12. To resign from the strata committee if I find I can no longer maintain this agreement to serve.

Dated: __________

Name: __________________________

Signed: __________________________

[el capitan]

Eminently sensible. I’ll adjust the wording to reflect this position. Thanks again.

[el capitan]

@JimmyT said:

No.  The presence of an acting member has to be approved by the committee. The committee can’t vote until a quorum is established so the acting member can’t be counted as part of the quorum because they haven’t yet been ‘voted in’ by the committee.  

Thanks, Jimmy – it’s unclear in that section that the appointment is definitely limited to one meeting, and the appointment form I found on the Certified Strata website has an option to appoint for more than one meeting. Does the committee need to approve such an appointment at each meeting? i.e. Does the resolution to allow an Acting Member apply to only one meeting?

Thanks,

El Cap

[el capitan]

@scotlandx said:
You can’t have a proxy at a Strata Committee meeting, you can appoint an acting member who must be an owner or company nominee, refer section 34.  

OK, I’ll reword so Proxy isn’t mentioned and Acting Member is substituted. I’ll repost once done for other members’ potential use.

Reading that section, it appears an Acting Member’s presence would count when establishing a quorum (“The owner or company nominee appointed is, while so acting as a member, taken to be a member.”).

Am I reading that right? What if an existing member is appointed as Acting Member? Do they count as two attendees for the purposes of establishing a quorum?

El Cap

[el capitan]

@JimmyT said:
Have a look here at the one we posted this week.

And Sir Humphrey posted the ACT’s standard Code of Conduct here (item 2).   

I am about to add the below to our scheme’s AGM agenda, based on JimmyT’s posted Code of Conduct and Standing Orders. I had to make it possible for non-Chair members of the SC to move, second and vote for Code of Conduct breaches to be recorded “just in case”.

How does the Description, preamble and minor mods to what Jimmy posted look to other members here?

TIA,

El Cap

The Owners – Strata Plan No. xyz – Motion for Adoption of Standing Orders and Code of Conduct for Strata Committee (Special Resolution)

Description: in the interests of creating a productive and positive environment for the operation of the Owners Corporation and its Strata Committee, the included Standing Orders and Code of Conduct are proposed to guide the Strata Committee in its day to day activities.

That The Owners – Strata Plan No. xyz SPECIALLY RESOLVE pursuant to Section 108 of the Strata Schemes Management Act 2015 to make an additional by-law in the following terms:

Special By-Law No. x – Standing Orders and Code of Conduct for Strata Committee

1. Standing Orders for Strata Committee Meetings

Strata Committee meetings of the owners corporation will be conducted under the terms of the Standing Orders affixed to this by-law as Annexure A.

2. Code of Conduct for Strata Committee Members 

Lot Owners nominated to be elected to the Strata Committee will be requested to indicate their agreement to be bound by the Code of Conduct affixed to this by-law as Annexure B by signing and dating a copy of the Code of Conduct when they are nominated for election to the Strata Committee.

If a nominated Lot Owner has previously signed a copy of the Code of Conduct, they are considered to have done so for subsequent nominations.

Annexure A

Standing Orders for Strata Committee Meetings of Strata Plan xyz

1. A committee meeting may not commence until the quorum of attendance (50 percent of the committee membership) has been reached. Proxy or absentee votes may not be counted towards the quorum.*
2. The meeting must be chaired by the elected chairperson unless they are absent or unable to do so, in which case the committee must elect a chair for the duration of that meeting.*
3. Voting on committee matters is by a show of hands with each member carrying only one vote (unless they have been granted a proxy vote in writing by a member who cannot attend and the committee has agreed to it being allowed).*
4. The committee must have agreed to allow proxy votes before they can be counted. A simple majority of the committee in attendance can choose not to allow proxy votes if they so wish.*
5. Members can be considered to be in attendance if they are present by telephone, video streaming or other electronic means.*
6. The committee must allow non-committee members to attend the meeting but they are only permitted to speak if a majority of the committee agrees.*
7. The committee may decide by a simple majority whether or not non-committee members should speak only on specific items on the agenda or on any or all agenda items.*
8. In a tied vote, the Chairperson does not have a casting vote and any motion will be considered not to have been carried if it remains tied after a re-vote.*
9. The chair should make it clear to non-committee members that they are bound by the committee’s agreed Code of Conduct and Standing Orders.
10. The committee will consider the items on the agenda in the order in which they appear unless a majority of the committee agrees to change the order at the meeting.
11. The Chairperson will allow each participating member or attendee to speak only once on a topic until everyone who wants to speak has had a chance to do so. The same restriction will apply after each time an attendee speaks.
12. After discussions, and before a vote, the Chair will call for anyone who wishes to raise a point that has not already been discussed, to do so.
13. Attendees and members who interrupt, talk out of turn or talk over other members may be warned verbally that their behaviour is not acceptable.
14. If the behaviour is repeated despite a warning, the Chairperson can call for a vote of the committee to ‘name’ the miscreant in the minutes of the meeting. A motion to call for such a vote may be also moved by any committee member and the vote will be held if the motion is seconded.
15. The Chair can also propose a vote to ‘name’ any member or attendee who breaches the agreed Code of Conduct, specifying which item in the Code of Conduct has been breached. A motion to call for such a vote may be also moved by any committee member and the vote will be held if the motion is seconded.
16. The meeting will be called to a close after the final item has been discussed and voted upon.
17. Any items not on the agenda can only be discussed informally and no vote should be taken or recorded.*

*Items 1 to 8 plus 17 are part of NSW strata laws or regulations.

 

Annexure B:

Code of Conduct for Strata Committee of Strata Plan xyz

I agree to serve on the strata committee for Strata Plan xyz and to be guided by the following principles:

1. To attend and participate in all meetings to the best of my ability to be present.
2. To respect the agreed Standing Orders at all meetings and to participate in a business-like manner.
3. To accept the committee’s majority decisions, even if I disagree.
4. To promote the goals and interests of the strata scheme in a constructive manner. To avoid creating unnecessary conflict among homeowners.
5. To disclose to the committee any financial conflicts of interests.
6. To conduct myself in a civilised and polite manner regardless of how heated discussions become.
7. To refrain from personal attacks on other committee members, owners or tenants and to avoid language that is racist, sexist or otherwise  discriminatory.
8. To do my best to ensure that the Owners Corporation’s finances are well managed.
9. To uniformly enforce, without fear or favour, the by-laws of the strata scheme and the laws and regulations enshrined in the Strata Schemes Management Act 2015 and Strata Schemes Regulations Act 2016.
10. To do my best to acquaint myself with the fundamental strata rules and regulations enshrined in the above by-laws and legislation.
11. To place the best interests of the strata scheme above my personal interests; the interests of a particular homeowner; or the interests of a faction of homeowners.
12. To resign from the strata committee if I find I can no longer maintain this agreement to serve.

Dated: __________

Name: __________________________

Signed: __________________________

[el capitan]

@Kenny R said:
I am an EC member and we have a potential issue with continuing maintenance to an individual (town house) owner’s wooden patio deck and railings to which the owner alone has exclusive use. Re there any grounds for having this being made the owner’s responsibility? This is the only townhouse in a complex of 12 that has such an area.

Can you copy the exclusive use by-law here? Was the patio deck and railings built before the strata plan was registered (and therefore part of the common property being given exclusive use of), or as part of a special privilege and exclusive use by-law? Or was permission just given (any records?)?

Maintenance of exclusive use areas is usually stipulated in the by-law as being the responsibility of the owner, but the by-law is supposed to state whether the owner or OC is responsible. I’ve just happened to read in Alex Ilkin’s excellent NSW Strata and Community Schemes Management and The Law, 4th Edition (ISBN 978-0-455-22326-1):

Maintenance and repair condition: The bylaw is required to specify whether the owners corporation or the owner is responsible for the maintenance and repair of the common property area the subject of the bylaw: s 54(1). If the bylaw is silent on this point it may be repealed by an [NCAT] Adjudicator: s 158(1)(a). To avoid this happening the owner should promptly seek to have the owners corporation pass and register a bylaw amendment to deal with maintenance and repair.

Hope that’s of some use – more information might help unravel the mess.

Sean

[el capitan]

Peter, thanks for that – that interpretation is the one our strata managers have given us and is the position the EC is currently taking on behalf of the OC. I’ll keep in mind your thoughts on the Tribunal stuff when/if it gets there.

Jimmy, thanks for your thoughts on which section might apply when applying to NCAT. The interpretation they are using is being used as they object on the grounds of an unreasonable loss of light into their unit (Council has already “ruled” on that by giving DA consent while considering the objector’s submission to Council on that basis), so the question of “reasonable” may still have some playing out to do.

If anyone else has any thoughts on the validity of the interpretation of the objector and my thoughts on the implications of the extent of that interpretation, I’d be very much appreciative, even if we are headed for NCAT.

Sean

[el capitan]

Thanks, Missy, I’d seen that one but it has features I didn’t want (financial ones) and I think it would require changes at our strata managers which at this stage I’m not wanting to suggest/impose.

i have (since posting) started looking at GeniePad, which looks pretty good, but is Canadian, so I’m going to try and find out if they have any Australian customers.

Sean

[el capitan]

Hi Peter,

with the registered by-law saying “This By-Law may only be amended or repealed with the written consent of the Owner or Owners of the Lot or Lots concerned and in accordance with a special resolution.” there’s no point taking it to a General Meeting to seek that special resolution as we don’t have “the written permission of the Owner of the lot concerned” – and we have, through the original passing of the proposed balconies’ by-law the stated and voted on support of all other lots.

I think it’s likely to go to the Tribunal, I’m just trying to find out if my interpretation of what is covered by the exclusive use grant is correct based on the objector’s interpretation.

Thanks

Sean

[el capitan]

Thanks, Peter – it’s less an issue of jurisdiction and more that the developer didn’t put that much forethought into the implications of the by-law as written, especially once he decided to build the balconies (several months after the by-law was written).

He built them without council approval, but they decided to just fine him and take no further action – no requirement to have them certified, let alone taken down as unapproved works. They can’t rescind that effective approval now they’ve made their ruling.

We have a “re-worded by-law” solution which, as matters stand, won’t be agreed to by the objector, so it can’t be put to a vote as written approval of the affected party/ies is required to allow such a change.

With that in mind, right now I’m interested in views on matters as they stand rather than potential solutions as I feel if there’s no negotiated settlement, we’re headed to NCAT and their ruling will be the implemented solution.

I’d like to know if I’ve overlooked something or if, in fact, my thoughts on how much common property the by-law as written grants exclusive use of are correct.

Thanks,

El Capitan

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