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Schedule 15, ‘Offences under this Regulation’, its right down the bottom.
Hi Bunyip, yes you MUST have an AGM every year, this was also the requirement under the old Act (SSMA 1996). Your Strata Manager should know this, you cannot skip AGM’s regardless of whether levies are the same every year or not. The AGM isn’t held just to set levies, there are many other important mandatory motions that need to be on the agenda, as well as electing a new SC.
I am not aware of any clause that allows a Strata Manager to not call an AGM.
57 Breaches by strata managing agent(1) If a strata managing agent has been delegated a function by an owners corporation and a breach of the duty by the owners corporation would constitute an offence under a provision of this Act, the agent is guilty of an offence under that provision (instead of the owners corporation) for any breach of the duty by the agent occurring while the delegation remains in force.
If your Strata Manager has the delegated functions of the SC, they must exercise the delegations unless it would be unlawful etc. I would be looking for another Strata Manager and lodging a complaint with Fair Trading as your Managing Agent may have breached the law.
It has a committee of one. There is no minimum number on the committee in NSW.
The number of members allowed on the SC is between 1 – 9. So in response to Jimmy’s answer, the minimum number is 1, you cannot have zero members on the SC.
If you don’t elect a SC, then you have no office bearers, not a great position to be in. Without office bearers you have no chairperson and no Secretary, which means you cannot call meetings.
Usually most Strata Managers will take on the role of the office bearers due to their Management Agreement allowing them to do so. When you engage a Strata Manager to manage a scheme, you delegate certain responsibilities and functions to them. There is every chance you would have delegated the functions of the SC and office bearers to your Strata Manager, check your Management Agreement ASAP.
Sir Humphrey, if there is no SC, the OC does not become the SC. One cannot become the other, they are two different groups. However the principle you explained is correct, if there is no SC, all decisions outside the Strata Managers scope of authority (regardless how small they may be) will have to go to a general meeting for a decision to be made.
The above scenario greatly increases your management fees as general meetings require a lot more work to organise than SC meetings.
Lady Penelope, yes a duty of the secretary is to put a motion to confirm the previous minutes for general meetings only (AGM’s & EGM’s). The Act does not specify any mandatory motions for strata committee meetings.
The Act only specifies mandatory motions for AGM’s and other general meetings (EGM’s), where as mentioned above, the Secretary must add a motion to confirm the minutes of the previous meeting.
Many people assume because you confirm meeting minutes for general meetings, this must also apply for strata committee meetings, which in my view, isn’t the case. That said, it isn’t a bad idea to adopt such a practice.
The legislation doesn’t state that minutes of a strata committee need to be confirmed. There is no set process for objecting to minutes in this situation. The easiest way would be to simply write to the strata committee or strata manager (if you have one) and state your objections in an email or letter. Any correspondence sent to the owners corporation must be stored in the records for everyone else to view, should they inspect the records of the OC.
Jimmy its not only the principle that needs to have a licence, anyone acting as, or performing the duties of a strata managing agent must hold a licence. I would report this company to Fair Trading as it would be a breach of legislation. If your scheme is dysfunctional, you could even apply to NCAT for a compulsory managing agent.
Lady Penelope is correct, there no exemptions in the legislation as long as they meet relevant criteria in the Act. Until the legislation is amended to provide for exemptions (no idea whether this will happen) then ALL windows that meet the criteria will require a safety device fitted. I have heard of OC’s trying to interpret and circumvent the law, however should an incident occur, they will need to get some solid legal advice.
supersleuth, Jimmy T is correct about the other avenues. The legislation doesn’t provide for recovery of legal expenses of this nature by an owner, though I am happy to be corrected. I always advise owners in this situation to take action through mediation and NCAT asap, 14 years is an extraordinarily long period of time without such action.
I agree with scotlandx, you need toughen up and not worry too much about those who say they didn’t receive the notice by post. Your role is to post the notice, nothing more. You, like the rest of us, aren’t in control of Australia Post and delivery times.
What I always suggest to schemes is to go beyond the requirements of the Interpretations Act and give at least 7 working days for postage to eliminate any arguments from owners who believe insufficient notice was given. Its really not that difficult to give that extra 3 working days.
I am not sure whether a by-law which allowed an OC to charge those who don’t have email addresses for services of notices would stand up in a Tribunal or Court. It could be argued by those affected that it is harsh, unconscionable or oppressive as many elderly and not so elderly people do not have computers or email addresses.
Jimmy, I cannot confirm for sure, but ‘short term’ lets may just be private agreements and nothing more. I am not sure whether the Australian Consumer Law (ACL) would cover you as most short term lets are just private transactions, in most cases you aren’t renting from a business with an ABN etc.
It’s the same if you rented any other possession of yours to someone else. E.g. I rent my lawnmower to you for a week for nominal fee of $50. I am guessing if someone is renting their unit out on a regular basis and appears to be running a business (without an ABN) it may be seen as a consumer contact under the ACL due to the volume of transactions etc.
This would be up to the Tribunal to determine. I could be completely wrong, as I am not aware whether short term lets are defined in other laws. I am happy to be corrected though.
Lady Penelope and Millie are correct, it is very unlikely that Section 258 of the SSMA 2015 can be used for short term letting as the overwhelming majority of short term letting stays would not be defined as a ‘Tenant’ under sections 7 & 8 of the Residential Tenancies Act 2010. I am also guessing the intention of the law at the time it was written did not factor ‘short term’ letting. Further notifying the OC after every short term stay may be seen as ‘unreasonable’ in some peoples eyes.
Ziggy, I am not clear whether you are referring to an OC carrying out repairs to common property, or an individual owner carrying out alterations/renovations to their lot?
If you are referring to the former, then a special resolution is not required. An OC only requires a majority vote (over 50%) to ‘repair’ common property, regardless of how ‘major’ the repairs may be. Refer to section 106 of the SSMA 2015. This section does not specify the type of resolution needed, which automatically defaults to a majority vote.
If a special resolution is required for a particular matter, the SSMA 2015 will specify it. If a resolution type is not specified, then a majority decision is the default and sufficient.
If an individual owner wishes to carry out alterations which are not deemed as ‘cosmetic’ or ‘minor’ under the Act, then using a process of elimination, the works may be deemed as ‘major’ alterations and fall under section 108 of the SSMA 2015 which requires a special resolution.
The easiest way of deciding whether proposed alterations to common property are cosmetic, minor or major is to use a process of elimination starting at cosmetic.
Section 5 of the Act defines what a special resolution is and how it is counted. Hope this helps you out.
Strata Schemes Management Act 2015
218 Matters that may be subject to mediation(1) A person may apply to the Secretary for mediation of any matter for which an order may be sought from the Tribunal under this Act.
(2) On receipt of an application for mediation, the Secretary must, if the Secretary thinks the circumstances of the case are appropriate, arrange for mediation in accordance with the regulations.
(3) The Secretary may dismiss an application for mediation if the Secretary believes that the application is frivolous, vexatious, misconceived or lacking in substance.
Civil and Administrative Tribunal Act 2013
55 Dismissal of proceedings(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:
(a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,
(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
(c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,
(d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
(2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure.
I agree with JimmyT, mediation in NSW is not compulsory, so attending with a vexatious litigant would be pointless and a waste of time. I would also do everything by the book. Certainly defend all claims at the Tribunal in a respectful manner. Make sure you document everything, keep all evidence in case of future litigation and try demand costs from the litigant through the Tribunal. It is very difficult to ‘stop’ a vexatious litigant, just keep on top of the situation at all times and don’t become complacent.
The strata laws don’t define what a ‘review’ is. I guess the intention of this new provision is for all schemes to sit down and talk about their by-laws. Many schemes haven’t discussed/amended their model by-laws in decades. This gives them a chance to bring their by-laws up to date.
A resolution at a general meeting should suffice to confirm your scheme has ‘reviewed’ its by-laws. However if others have a different opinion, I would be happy to hear it.