[TrulEConcerned]

I am not saying that it is just or proper, but it is common for the strata committee or managing agent to deal (on the matter or bonds) with the owner of a premises rather than a tenant, for the simple reasons that the owner can easily be billed by the strata, whereas a tenant (i) may or may not have departed by the time the bill is processed; (ii) the tenant may receive the bill and choose not to pay and it is doubtful that a strata committee will hound a debt into the courts if the legal costs exceed the debt and (iii) the tenant has no direct relationship with the strata.

I do however see two options you could take to the strata committee:

(a) The by law refers to “residents”. One could argue that term refers to tenants when the owner lives elsewhere and that imposing a bond on an owner who lives elsewhere (and the bureaucratic nightmare that is associated with that) is unjust and could be challenged at NCAT; or

(b) Remove the by law and adopt an “understanding” amongst the owners that no bond will be taken when folk (owners or tenants) move into or out of a premises, but what will happen is that (i) the strata manager will arrange for before and after (the move) photos to be taken of common areas and if damage was caused, then the owner will be billed. How he/she deals with the tenant that caused the damage is his/her business. And in the event that no damage is sustained, then there is no need for any money to change hands b/w the any of the parties.

I am familiar with strata plans adopting option (b) and in my experience (b) and it works well.

[TrulEConcerned]

It seems logical to give tenants keys to those parts of the common property to which they are entitled and to which giving the keys will make YOUR life easier, say the meter room. After all, if there is a problem with the water or power getting in to the unit, do you really want to be the only one with the key and to be bothered to come over to the unit to open up the meter room so that the problem can be attended to by the water or power company? And to go when the tenants say is convenient to them? After all, the technician/tradesman will need access to the unit as well.

As to gardener’s shed, I assume the gardener  acts and is directed by the strata committee and it makes sense that keys are closely held by the strata committee and not shared with every owner (at least I would hope so), let alone shared with every tenant. In such a case I would argue the tenants have no business involving themselves with the shed and hence no legitimate reason for a key.

 

[TrulEConcerned]

Jimmy-T wrote

I’m still not 100 percent sure of the timeline here.  The tenants vacated early, you took them to NCAT, you lost there, Correct?  So you then, thereafter, you took the renovator to court and lost there?  Is that correct?

Yes. Tenants vacated  several months before the lease expired. Under the lease they were to pay 6 weeks rent as the penalty for vacating early for any reason. I took them to NCAT seeking enforcement of the lease, by Mr Member allowed them to escape liability because he agreed with them that their ability to live and work in quiet, that is their “peaceful enjoyment”, was stripped from them and that it was the landlord’s job to ensure that their peace is not violated. Regardless of who violates it.

I then applied to the Local Court, which heard the matter many months later, seeking the renovator reimburse me for my loss of rent as per the lease agreement i.e. 6 weeks. Of course the real loss to me was the time the premises sat empty: from the day the tenants vacated until the place was re-let. From memory it was nearly 6 months.

[TrulEConcerned]

Jimmy, I agree it is a mess and that NSWFT should clean it up.

That said, some time ago I heard that at a NSW strata plan, a proxy form was rejected by the agent when not all co-owners signed the form. The reason stated was that the form asks to print the names of lot owner(s) (the two lot co-owners names were printed) and required the signatures of the lot owner(s), but only one co-owner signed.

The following from Victoria backs this up:

I found one case questioning if all co-owners of a lot need to sign a proxy to consider it valid. That case sheds some light on the topic, see Babray & Ors v Whittles Australia Pty Ltd (Owners Corporations) [2013] VCAT 327. 
In that case, the validity of a proxy form was questioned as it was signed only by one of the two co-owners.  But Madam Member did not decide its validity as the proxy form was accepted at the strata committee meeting.

That said, Madam Member did state a preference for all co-owners to sign the proxy form so that it is clear that their joint vote may be exercised by the appointed proxy without question.

Madam Member revealing her “preference” is good enough for me. All co-owners should sign if they want to avoid all doubt.

[TrulEConcerned]

Jimmy-T wrote
In my experience, the one way to convince older owners – who are often on fixed incomes – to change their minds is to tell them that their money is being wasted. Telling them that someone they trust shouldn’t be trusted is a much harder sell.


I agree in principle, but the dynamics in this strata is different.

Jimmy-T wrote
Thus, your original approach that the “hidden” subscription to a strata law web service was suspicious, may have worked against you, whereas questions about money being spent on things the scheme doesn’t need would probably  have more effect.


Please note that I shared my suspicions with you and nobody at the strata. I want access to all the strata records first so I can determine the extent of the absence of transparency, before making noise with the agent and SC/OC. I found it very interesting that in recent two chats with NSWFT, they were for the very first time in my experience, encouraging me to adopt an aggressive posture with respect to the agent who is holding back strata records, even though I asked politely.

Jimmy-T wrote


So your initial thrust in getting more transparency on the finances was right, but your tactic may have been wrong.  Presenting the owners with a simple approach along the lines of  “here’s how we can save  money” rather than “you are being swindled” might just get you that extra vote that you need to get on the committee.


Maybe. Let me clarify. The 5 lots are as follows: “A” (Mr Secretary), “B” (Madam Chair), “C” (senior gentleman with memory issues), “D” (new owner) and me.
“B” is constantly assured by “A” that issues will always come to the attention of the SC and that she can rely on A, so long as he alone can sort matters out. He is a solicitor, after all he reminds us. “B” is frankly an extension  of “A”. As far as I have seen, she is not involved let alone responsible for admin, repairs, maintenance, instructing, hiring or liasing with the agent, convening or even Chairing meetings (as there are none). When I ask her about any matter regarding the SC, she refers me to the agent who will contact Mr Secretary.
Case in point: Her chronic deference to the Secretary (without question) was most visible last year. The smoke detector in my unit was not working. It is a common property asset and hard wired. Like all such units it is connected to a common fire board. When I mentioned to Madam Chair that it was not working, she referred me to the agent who would seek instructions from Mr Secretary. In due course Mr Secretary via the agent emailed me that I have a choice: I can either pay the OC for their electrician to fix the problem or I can pay an electrician of my choice to fix it. “Let us know”, I was told.
I replied to the agent and relayed the contents of my email verbally in person to Madam Chairman (when I bumped into her) that “this is not my problem as the detector is common property”. Her reply to me: “just sort out the payment for repairs with the Secretary”. I doubt she understood my point on common property. Only after I emailed the agent with advice from NSWFT: “such fire systems are OC assets and OC responsibility” did Mr Secretary stop his demands. From her perspective it seemed to me that I was a nuisance and not “being fair”.
When I reminded her that several years ago, at the same strata with a different agent, Mr Secretary tried the same shenanigan on me, she could not recall. I do however have the emails wherein the agent in that case pretty quickly broadcast just who is responsible for a common asset – the OC. I am worried by her automatic deference to Mr Secretary and what seems to be his ignorance of the Act. You’d think after 30 years he’d know it inside out. Or does he know it and he’s having a go at me?
As to the senior gentleman, “C”, he is more and more forgetful and is prone to mood swings. Mr Secretary sits with him at AGMs in order it seems to secure his vote. After all, such people are not reliable, unless they are “managed” by another person, such as one of authority at a meeting, sitting by his side.
This explains I believe why at the last AGM in 11/20 via ZOOM, Mr Secretary traveled to “B’s” abode and sat with both “B” and “C”. Silly me thought the point of ZOOM was to stay safe and stay at home, so everyone can meet virtually from their own homes or offices, without the need for travel.
So here we have A+B+C voting as per Mr Secretary’s wishes.

 Appealing to either “B” or “C” as you suggest will not work in this strata, unfortunately. “D” is a relatively new owner and as I have found when Tsr of a large block, new owners often go just to the committee for background information on the strata and when seeking directions on voting when presented by a AGM agenda. Especially owners who reside elsewhere. a

Sorry for the long winded reply, but I wanted to clarify as much as I could.

[TrulEConcerned]

Jimmy-T, I forgot to address one of your questions directly:

You wrote:

I had a horrible feeling you were going to say that. But just to be clear, for future reference, you lost the case at NCAT and then, thereafter, the local Court ignored the NCAT ruling? Is that correct?

Tenants vacated early i.e. before the lease was up. I sued for them to pay me what they agreed to: 6 weeks rent if they vacate early for whatever reason. They did not want to pay, citing the noise and dust from the renovator made life very difficult. I took the renovator to the Local Court to reimburse me for the lost 6 wks rent. Of course by the time the case was heard, my premises were vacant for a few months after the 6 week period ended. His Honour felt that renovations are part of life and that I need not be compensated.

So yes: At NCAT I lost my fight for the tenants to pay the above mentioned 6 weeks rent and at the Local Court, I lost the fight to have the profiteer (Mr Renovator) reimburse me the 6 wks out of the $305k he made.

 

 

 

[TrulEConcerned]

Kaindub wrote

Where was the OC in regulating this renovator? Surely the approval of what seemed to be a major renovation should have come with conditions (hours of work, dust, noise, clean up etc). It would then be up to the OC to enforce this.

Was approval by the renovator ever sought?

In my case the renovator sought and rcvd approval for the works and worked regular business hours, making a lot of noise and dust as you would expect.

A couple of weeks before  he started the renovation, BTW I was not told when he would start, one of the two tenants started working from home. The renovations meant she could not do so peacefully.

My tenants were also bitter about not being able to sublet via Air B&B. “After all” they said, “who wants to live with the noise”? I reminded them that enriching themselves via subletting on Air B&B violates their NSW residential lease agreement. I had to go separately to NCAT to win that point.

[TrulEConcerned]

This should help you:
Search for
STRATA SCHEMES MANAGEMENT ACT 2015 – SCHEDULE 1

Then scroll for

SCHEDULE 1 – Meeting procedures of Owners’ Corporation

go to
Part 4 – Voting rights and voting procedures
Division 1 – General rights to vote
23 Persons entitled to vote at general meetings

Division 2 – Appointment of proxies
26 Appointment of proxies

Good luck.

[TrulEConcerned]

Jimmy, I agree that a tenant has little sway (in many cases) over a landlord or the OC. But at NCAT as far as I have seen, tenants have a good deal of sway.

You wrote:

However, that NCAT ruling meant you had a figure to take to the other owner to demand compensation for your loss. A compensation figure that had been established at the Tribunal represents considerable leverage.

I asked the offending lot (who bought a unit, renovated, creating a lot of dust and noise in the process and then sold making over $300k) for compensation. He was not interested.

I then took him to the Local Court and LOST.

His Honour found that renovations are to be expected in a modern city and that everyone just had to put up with it. I asked “why must I wear the cost of his renovation that forced me to compensate my tenant for the inconvenience of his renovations and the loss of rent resulting from my unit standing vacant as NCAT allowed the tenants to break the lease early without requiring to pay a break fee?  Surely an equitable solution is for the renovator to make a smaller profit by allowing for the impact he had on my tenants.

I ended up giving the tenants compensation; unable to stop them vacating without a penalty and paying court costs.

[TrulEConcerned]

Kaindub, thanks again for your feedback.

You may have misread my post.

You wrote: I understand that the committee consists of two people from the same lot.
Not quite. It is two people but from 2 separate lots. Pls see my explanation as to the attempt to foist onto the committee multiple reps from the one lot, in my most recent email.

You wrote: You nominated for the committee but the OC voted to have only 2 members.
I nominated myself as did Mr Secretary and Madam Chair. Three nominees.
Mr Secretary then asked how many folk do we want on the committee. I said “3”. We voted and I alone voted for 3. He then moved for a committee of “2”. I voted against. He, the Chair, another senior and a new owner sided with Mr Secretary. I mean, why wouldn’t they? He is very assertive with the seniors and the new owner is no doubt influenced by him more than anyone else they have met in the building. After all, he surely informed them of his 30 year tenure as Secretary, as a sign of his importance.

After it was settled that the committee would have 2 members, we voted on which 2 persons would be on the committee. No prizes for guessing that Mr Secretary got his way and the 2 SC members who have been on the SC for years, him and the senior woman, were re-elected.

You wrote: If you cant convince the committee and strata manager of their errors, take this to NCAT, You may also want to consider asking to have the solicitor removed by NCAT from the committee for the lack of knowledge of the act.
Kaindub, if I went to NCAT I would not argue that he lacks knowledge of the Act, but that he behaved as far as I can see in a manner that does not rise to the level of honesty. He knows the Act inside out.

Let me say that if I went to NCAT, assuming I had all my ducks in a row, I will certainly give y’all a heads up of the date, venue and time.

[TrulEConcerned]

If I may suggest, you need to spell out more facts if you want clear answers.

You write “necessary” renovation. Why “necessary”?

Was there a problem with say the pipes in the wall, the damage caused to your bathroom needed repairs, if so that would therefore be an Owners’ Corp responsibility.

Was it not “urgent”, but just cosmetic? And the owner wanted to do it now? If so, then it was not really “necessary”.

Kaindub is right about going to NCAT as an option. But there are several unknowns. For instance, if you want compensation, your current rent may be considered by NCAT. If say you’re paying a low rent, then NCAT may not rush to compensate you even if you were inconvenienced. Or they could order a refund to you for the days you could not use the apartment. Alternatively, if the renovation is cosmetic and will enhance your enjoyment of the premises (once finished) and the landlord is not jacking your rent up as a consequence of the renovation then NCAT may dismiss your case altogether.

And of course there is my experience with NCAT: a neighbour renovated, caused my tenants problems (noise and dust), my tenants complained to NCAT seeking compensation FROM ME and they won.

[TrulEConcerned]

Kaindub makes a good point about you sighting the management contract. When you do have a look at it, see who signed it on behalf of your OC. Normally it is 2 members of the SC, with one of them being more vocal/dominant, who I call the puppeteer, with the agent typically being the puppet.

In my experience in various strata plans, lazy inexperienced or not, the agent has always done as told by the puppeteer. After all, if the puppeteer knows the contract then he/she knows how to sack the agent.

[TrulEConcerned]

Jimmy, the folk Mr Secretary wanted to put on the committee own one lot jointly. Your point “Co-owners of the same lot cannot be on the committee at the same time “ is correct. Mr Secretary, a lawyer of 30 years plus standing with a deep interest in strata affairs pretended not to know the law and addressed the motion as though it was another insignificant procedural matter. He acted very chummy with the seniors: “the more on the committee the better, no”? seemed to be his cunning attitude in promoting this outrage. When I made clear to the seniors that he is breaking the law by doubling the voting entitlements of one lot to the detriment of them, the seniors, I had to repeat myself given their  memory problems. I did not know that it was illegal for one lot to have multiple representatives on a committee and I was alone in initially opposing Mr Secretary’s outrage (which I thought MAY be allowed, he is after all a lawyer he keeps reminding the OC) but I said that it stands to logic that irrespective of how many reps a lot can have on a committee, in total the reps cannot have more than one vote. I said that I would not oppose the motion so long as the lot in question’s two reps would have half a vote each. And if they brought a third person I indicated again I would not object so long as the one vote for that lot would be split again, this time to one third of a vote each.

The seniors finally saw the light.

Mr Secretary did as you would expect. Accepted his shenanigan had hit a brick wall and dropped the matter.

 

[TrulEConcerned]

Hi Kaindub,

Thanks for yr insight. I may have been unclear.
At the AGM that from memory immediately followed my objection to Mr Secretary’s move to allow one lot owner to have two representatives on the OC, with a vote each, Mr Secretary/Tsr  made clear to the OC that he would not sit on the SC if I am voted on. He convinced two seniors in the block of five that they would be “fortunate to have him with his experience as a solicitor on the SC”. The inference being it’s him or it’s me. Not both. Never mind that I was Tsr of a block of over 60 units for nearly a decade (with a committee of between 5 and 7) and after some years decided not to re-contest as I had other matters in my life to deal with.

Naturally he had the lot he was batting for (who wanted 2 seats) in his pocket, so with his vote and the two seniors:  the vote was 4:1.
Oddly, from that AGM onwards I recall he always asks me before the meeting takes place if I have a recording device with me. Once I brought a friend to the meeting and Mr Secretary grilled my friend with the same question, in addition to inspecting my friend’s very large key ring for possibly a minute recording device.

As to your point on numbers on the SC: Mr Secretary begins discussion at the AGM on the topic asking who wants to be on the SC. At the 11/2020 AGM three hands went up via a ZOOM meeting – Mr Secretary, Madam Chair and me. He then asks “how many people should we have on the SC” and volunteers “2” and we vote on that number. 4 support a 2 member SC. I object and ask for 3 members on the SC. We vote and I alone support 3 members.  We then vote on which 2 of the 3 nominees will go on to the SC. Naturally I alone voted for myself.

I found it quite disturbing that while all 5 owners were to independently join the AGM via ZOOM, presumably from their own abodes, Mr Secretary arranged to have the 2 seniors sit with him at the meeting, held in the home of one senior. The seniors seemed overly compliant with Mr Secretary.

 

[TrulEConcerned]

Hi Kaindub,

You ask:

If you are in a block of 5, why are you not on the committee? its unlikely that if you  nominated that you would not get a seat. You then have front row access to all correspondence between the strata manager and the committee.

I was on the committee as was everyone years ago, when it was self managed. One day I proved that Mr Secretary/Treasurer mixed his funds with the OC’s funds and that he behaved in a questionable manner. For instance, he used OC funds to buy a stove for another lot, claiming stoves were the responsibility of the OC. In fact the Chairman (who still is Chairman) also smelled something fishy and had a colleague inspect the books which proved me right and then it was decided unanimously that we hire a managing agent.

I  remained on the committee for a short while as was everyone else, with a managing agent in place. We met at times as the SC and at times as the OC, after all 5 lots, 5 votes all attending meetings.

But I was impeded in rejoining the committee after I disagreed with Mr Secretary/Treasurer with his move to allow one lot to have two people (being two votes) on each committee ie on the SC and OC. I made clear that on the OC if a lot owner wants two representatives, then they can have half a vote each, not one vote each. Mr Secretary/Treasurer has decades of strata experience and knew his motion was wrong in law when he made it yet he persisted, thinking I can be intimidated like others. When I pointed out that I will ask the CTTT (at the time) to rule on this motion if it is carried, he withdrew it.
When I tried again to join the committee, Mr Secretary/Treasurer threatened others in the block that he could not work with me and would not sit on a committee if I was elected. When you consider he was talking to one owner, a senior with memory issues and another owner, also a senior who like many seniors is easily influenced by domineering personalities, both elderly folk folded like a pack of cards.

Given my experience, which I am sure is not unique, perhaps a useful reform of SSMA is to consider all owners of small schemes automatically as members of the SC unless they themselves choose to opt out of the SC. That should improve situations like I have experienced, by ensuring I am on the SC if I want to be and those not wanting to be on the SC, can choose not to be. I think it imperative when, as in my case, the same person with a questionable history has held virtually the same position on the SC for nearly thirty years.

[Author]

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