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I know all has been said and done in this post, but my views on this one are identical to Whales. The act does say the Owners Corporation must replace a vacancy when one occurs. Vacancies in the committee in my view should be replaced at an EGM as they are elected at a general meeting in the first place. If the Acts intention was to allow the EC to replace its members, then it would say ‘The Executive Committee must appoint a person eligible for election’ etc.
Also there is no provision for ‘Proxy Forms’ for EC meetings. I really don’t know where people get that idea from. There is no prescribed proxy form for EC meetings, if the Act allowed for proxies for EC meetings there would be a prescribed proxy form to go with it (I guess). Acting members in my view are physical replacements who can act for a member of the EC if they cannot attend a meeting. E.g I appoint Whale to act on my behalf at an EC meeting as I cannot make it, however this is subject to the approval of the rest of the EC.
Again I am no solicitor, it’s just how I read the SSMA. I am not saying that your views are incorrect Jimmy, we all interpret things differently, and if what your doing works in your scheme and everyone’s happy, then so be it.
I agree with Jimmy on this one. Going down the legal avenue wont help anyone including yourself. It will only benefit the solicitors. Sometimes you have to just move on with life and enjoy it. There are way too many legal battles in the strata world. A lot of problems can be resolved without the need to sue, unfortunately we are going down the American model where we like to always blame someone else and seek retribution whether its worth it or not.
Whale is correct in saying there are no new ‘model by laws’ in regards to smoking. Even if a no smoking by law is released in the newest set of model by laws (which will be released with the new Act possibly in 2016) your scheme would have to choose to adopt it. You may as well create your own by law in regards to smoking right now.
Currently you have section 117 of the SSMA which may cover you for now, where owners and occupiers are prevented from creating a ‘nuisance’ or ‘hazard’ which smoking arguably is. However to enforce this section you will need to go through mediation and adjudication (which is a long long process).
Well I am sure some schemes have tried to implement a ‘no smoking’ by law, but in my view, it would be very difficult and cumbersome to enforce. I think a blanket no smoking by law would be unfair, even though I am against smoking, I believe those who wish to smoke in their units should be allowed to do so, as long as they are not affecting any other lot owner.
Well I am not sure, however from my point of view, if the EC didn’t have to hold meetings to make decisions, then the SSMA wouldn’t mention that you must give the OC 72 hour’s notice for EC meetings with an agenda posted on a notice board or sent out to all owners etc.
Also if the EC is able to make decisions freely outside of EC meetings it would defeat the purpose of the following clause in the SSMA 1996:
11 Decisions of executive committee
(2) A decision of an executive committee has no force or effect if, before that decision is made, notice in writing is given to the secretary of the executive committee by one or more owners, the sum of whose unit entitlements exceeds one-third of the aggregate unit entitlement, that the making of the decision is opposed by those owners.
Owners would not be aware of any upcoming decisions, hence would not be given the chance to object to motions on the agenda as shown above.
Another point to add to the debate is that the SSMA says that even though EC meetings can be held in writing, the EC is still bound by the same processes as if holding a ‘regular’ EC meeting in person:
10 Voting in writing by members of executive committee
(1) A resolution is taken to have been validly passed even though the meeting at which the motion for the resolution was proposed to be submitted was not held if:
(a) notice was given in accordance with clause 6 of the intended meeting, and
(b) a copy of the motion for the resolution was served on each member of the executive committee, and
(c) the resolution was approved in writing by a majority of members of the executive committee.
(2) This clause is subject to clause 11 (2).
I guess the one of the main purposes of holding EC meetings is for transparency to the rest of the OC. If decisions were just made at will outside of EC meetings, then the rest of the OC would not be aware of what decisions are being made within the scheme they are living in and what their money is being spent on. Also it would make for a dysfunctional EC if certain members got together and excluded other members of EC and starting making decisions in little groups; spending the OCs funds as they wished.
There is no such thing as ‘general business’. I guess some schemes can add their odds and ends here, however from my point of view, ‘general business’ should only include a discussion, not decision making. Again the reason for this is transparency. If you have a title on the agenda saying ‘General Business’ and no motions listed under it, then it can be taken that no other decisions are going to made at the EC meeting, hence as above the OC would not be given a chance to object to any decisions made through ‘general business’. I am guessing this would also apply equally to all General Meetings.
The only exception that I can think of where the EC would NOT have to hold a meeting to make a decision would be in an emergency. These decisions would be very rare. E.g. A pipe bursts causing significant damage to the rest of the building, the EC simply needs to make a decision to get the repairs done.
This is just my point of view, however I may be wrong, we are all entitled to our opinions and I respect all other opinions on here.
Ok there are many issues here. Firstly the EC cannot make a decision on an item unless it is listed on the Agenda of an EC meeting. The EC can discuss whatever they wish, but discussions are not decisions, and you cannot turn a discussion into a decision unless it is clearly listed as a motion on the Agenda of that meeting, a lot people tend to confuse the two.
An option would be to try calling an EGM; or if you have an AGM coming up, submitting a motion to be included on the agenda of that meeting. Any decision that is made in regards to the illegal works can be decided there, and any decision that is made at a General Meeting will overturn the EC decision not to pursue this matter.
Other than that, you could apply for mediation against the OC for not pursuing a breach of by law or mediation against that individual owner.
In NSW the SSMA 1996 says:
- (2) When a vacancy occurs in the office of a member of an executive committee (otherwise than by reason of subclause (1) (d)), the owners corporation must appoint a person eligible for election as a member to fill the vacancy. Any person so appointed holds office, subject to this clause, for the balance of his or her predecessor’s term of office.
I guess you could call an Extraordinary General Meeting (EGM) and replace the vacancy there. How soon should that be done? The act does not say how soon, however like everything else it should be done as soon as practicable.
A strata manager can only be dismissed by a majority vote of the OC at a general meeting or through applying for a compulsory managing agent under s162 of the SSMA through the NCAT. One owner cannot dismiss a Strata Agent if they are not the majority regardless of how bad the managing agent is. Also the buck lies with the OC not the strata manager here, yes the strata manager may be providing poor customer service, but if that is the case, the Owners need to step up and take some action. If the other owners are against you, then mediation and adjudication is usually the next step in the process.
Gas cylinders are usually very safe in most environments. I have heard of gas cylinders surviving bush fires without exploding etc. There is nothing in the Strata Act about storage of gas cylinders or gas at all, but you may want to contact NSW Fire and Rescue and get some advice on any fire regulations that may apply, however I am pretty sure that there are no laws to state that gas cannot be kept on a balcony of a strata building.
As you have stated the compliance date is March 2018 so NO it does not have to be complied with until then, it would be up to the OC when they decide to implement the changes to the windows as long as it’s before the cut off date.
If you read s31 of Strata Schemes Management Regulation 2010 will outline the criteria as to which windows these new provisions apply to.
AJP some Strata managers simply have no idea of the Strata Act or Regulations and/or are too lazy to follow the laws. Even though you can delegate all the functions of the Executive Committee office bearers to the Strata Manager, you should always elect the office bearers even if they technically don’t perform those functions on a day to day basis. There are many reasons for this, one important one is if the committee need to take over the management of the scheme, you will need the office bearers to be able to carry out their roles.
That’s a really good/detailed response from Whale. I can just add a reference to Section 18 of the SSMA:
- (1) The members of an executive committee must, at the first meeting of the executive committee after they assume office as members, appoint a chairperson, secretary and treasurer of the executive committee.
It doesn’t matter how things have been run the last 15 years, this is what the law says.
Section 75A from my understanding applies to ALL strata schemes in NSW regardless of age and condition. I guess the reason for the implementation was to ensure that strata schemes start planning for the future and budgeting for any major projected capital expenses which many were not, and probably still aren’t.
@kiwipaul said:
You are in an impossible situation with an unreasonable chairperson. I agree with everything Whales says and if your chairperson was reasonable that is the way to go.Doing it legally you could end up paying for an EC meeting, EGM, cost of a SBL only to have the SBL rejected at the EGM, all of which could take 12 months. You would then be faced with going to conciliation and adjudication with a 50-50 chance of winning.
My solution would be to get the job done and keep quite about it (you say it’s not visible from outside the unit) and nobody is any the wiser. If they found out about it they would have to take you to conciliation and adjudication.
You could then advise that others have been allowed to do alterations without approval and the chairperson is acting without the approval of the EC or OC for some of his decisions.
Ask to be shown the motion (with votes) for some of the chairperson decisions by the EC or OC. These are required to be held by the SM for 5 years.
I disagree with one point here, doing the work without the permission of the OC is not the answer, and is still illegal regardless of whether other owners have carried out similar works in the past without permission. So in my view, if you did go ahead with the work quietly without approval, the OC could still claim that you have breached s65A of the SSMA 1996.
- There is nothing in the SSMA about precedents but you could use this if you went further to adjudication through NCAT, they may consider precedents within your scheme, I guess it wouldn’t hurt to mention it if you do make an application. You can try dispute that the OC is unreasonably refusing you permission to go ahead with the work. Whether or not your EC or OC takes notice of precedents is neither here nor there, if they decide to take precedents into consideration they do, if not then you will have to go down the same dispute resolution avenues (mediation & adjudication). It doesn’t matter whether it’s a typical or simple request, makes no difference in the end.
- A special by law cannot be ‘approved’ by the EC, it has to go to a General Meeting of the OC for approval as you probably know.
You can try call an EGM if you have enough support from other owners within your scheme, and submit a motion on the agenda to obtain permission to renovate your balcony. This decision at an EGM will overturn any previous decision made by the EC. The chair person’s role in a strata scheme is to chair meetings, they do not have any additional powers or decision making ability than any other member of the committee or the OC. Some chairpersons think they are the ‘president’, ‘king’ and almighty ruler of the OC, which is quite funny and a good laugh.
The only tip I have is:
When dismissing your current agent, try and do everything according to the SSMA 1996. Make sure all of the procedures for general meetings are followed as close as possible as many strata managers will do whatever it takes not to be dismissed. In other words they will do their best to find a technicality, and use that to ensure that they aren’t dismissed and hence gather more fees and charges over time.