[TrulEConcerned]

I believe we do have such by-laws which I think are standard in most strata schemes. If so, then are you suggesting Ms X or I could apply to NCAT claiming the OC via the strata committee is not doing its job?

[TrulEConcerned]

Three things come to mind:

1. You wrote that you liked the most recent strata manager. In your shoes I would try to hunt him down. If he has moved to another agency and is still a strata manager, he may be able to guide you. Guide you in terminating the contract and perhaps offering to take you as a client;

2. If the contract spells out how you can terminate without penalty and you do so in the time allowed, then you should be on safe ground to exit. If the current strata manager contacts you querying why you want to cancel tell him your grievances. He may then act appropriately and address your concerns. If he starts to act in your interest about fixing defects, you may want to give him a 1 year contract; and

3. Having found the only way to get satisfaction from non performing strata managers is to complain to Fair Trading, I suggest you complain online about the agent not doing his job, see

https://www.fairtrading.nsw.gov.au/help-centre/online-tools/make-a-complaint

scroll to

real estate, property management and strata

click on

complaint form

and fill it in.

There is no cost and FT will look into the matter.

As you have no idea what will happen with the former and current strata managers, I would file the complaint ASAP. It’ll take time for FT to get to it and of course you can always withdraw it if matters settle down to your satisfaction.

[TrulEConcerned]

Sorry to echo the above two, but you are indeed bound by the contract. I hope for your sake it isn’t a Strata Community Association contract. They are very much in favour of the managing agent,

In one scheme I am involved in, the owners at a meeting a year ago, led by a useless but know all committee, decided to get a new strata manager  and delegated nearly every function to him. That is ALL the owners decided to do that; all but me. I actually read the one sided contract and was horrified. That committee, of which I was not a member as well as other owners thought they were really smart and did not even bother to answer questions from owners about the delegations proposed at the general meeting.

Now, a year into the contract, a committee member wants to change some delegations. I too am on the new committee.

I asked he committee member why he wants to change the delegated functions given to the strata manager? After all he voted and promoted to others the “wisdom” of giving nearly all the functions to the SM! I asked him , “who in his right mind signs a contract without reading it”? It’s been 2 monthzs and I’m still waiting for a reply.

I told him about negotiating with the strata manager for any changes he wants. He is now considering just what functions of the strata manager he wants to change.

Anyway, I am not a lawyer but work in finance and the little I know of contract law was confirmed by Fair Trading. A contract e.g. strata management agreement, even if it’s very one sided, cannot be varied without the consent of both parties. “Consent” may mean the OC handing over cash to the strata manager in order to void a clause or two. A clause or two that was earlier agreed upon on by the OC.

[TrulEConcerned]

Bigpon2,

Further to points made earlier, I suggest you email your strata manager and other strata committee member to make all the records available to you within 7 days at no cost as you’re on the strata committee.

Tell them that if they fail to do so, you’ll take the matter to NCAT (no mediation needed for such an issue), where your solicitor will remind the Tribunal of the following cases:

Legge v Network Strata Services Pty Ltd (SCS) [2013] NSWCTTT45 and
Walker v The Owners -Strata Plan No. 1992 [2020] NSWCATAP 192

At NCAT, your strata manager and the other committee member will be shocked to learn that the Tribunal in both cases found that “privacy laws” do not protect information owned by the OC, including but not limited to the strata roll or levy register, whether or not such information is held by a strata manager.

I repeat, privacy laws do not apply when it comes to strata scheme documentation owned by the OC. While NCAT does not usually award costs, it seems to me that in this situation where you have made the strata manager and other committee member aware of their legal errors and knowing that they continued to obstruct your access to the records, that you may well be awarded costs.

Best of luck!

[TrulEConcerned]

Good day CupoC,

Re: By-Law

1. Jimmy is right: forget a “forensic professional” to examine the records. Just what do you think (i) qualifies someone for that task? Is it an experienced auditor? If so, have you any idea how much that will cost you? (ii) whatever ANYONE (you, me or a  self described “professional”) finds in the records will at best only reflect what was decided to be kept by the strata committee. Breaking News: a cunning or unscrupulous committee or strata agent is smarter than you and I. Such folk will not leave any trace of evidence that could reflect poorly on them. The most cunning would have nothing in writing in the first place, they would have made all decisions verbally and NOT deposited notes of their discussions in the files;

2. Jimmy is spot on when recommending an experienced strata lawyer. Note  the adjective “strata“. Using a “family” or “general” lawyer is a colossal waste of your money (especially if the committee members or agent know the law and make use of a strata lawyer themselves). Get a couple of quotes before moving forward;

Motions for general meeting

3. You mention the SM ignored adding your motion to the agenda. Separate to the above two points, I suggest you ape my actions (of 2022) below:

(a) C0mplain online to NSW FT about the agent refusing to list  your motions and tell NSW FT he is clearly ignoring the obligations under which he is licensed (being the Property & Stock Agents Act and Property & Stock Agents Regulation). The complaint can be filed at the following link

https://www.fairtrading.nsw.gov.au/help-centre/online-tools/make-a-complaint

—> Real estate, property management and strata

—> Complaint form

I did just that in late 2022 after I emailed the agent my motions. Soon after he confirmed they would be listed in the agenda, but a fortnight later when the agenda was sent out, my motions were nowhere to be seen. He refused to explain himself to me.

NSW FT investigated my complaint and asked the strata agent some questions he clearly was not comfortable with. Upshot: two weeks later he resigned as strata agent of the scheme. This was very unwelcome news for the strata committee who thought they and the strata agent could ignore the law if it suited them.

Complain as above ASAP. Today is a good time. Do not tell the agent or the strata committee that you have done so. Let the process work its way through NSW FT. FT will, 10 days or so after you file the complaint, call you to confirm they will look into the matter or call you to seek more documents.

Do not confuse the by-law and motions issues (which could be considered separate matters) you are facing:

(a) Whether a by-law as proposed is lawful and

(b) Poor conduct on the part of the agent (i.e. breaching the Act under which he is licensed) in not listing your motions (which can be about anything) for the next general meeting.

Good luck!

[TrulEConcerned]

Jimmy’s point on the a fee (regulated at $31 + GST for the first hr and additional fee for each additional time) often being charged to owners to access the records of the strata scheme, including inspecting the strata roll is true.

But recently when I complained to Fair Trading that a strata mgr wants to charge me $49 for each document that is not available for free viewing on the strata mgr’s portal – and I want a history of a current dispute and have no idea if it’s 10 documents or 50 documents I need – FT told me that a SC member can inspect at no charge.

All an SC member needs to do is ask the strata mgr (in writing) when it would be convenient to inspect the records “in order to acquaint myself with all the facts regarding matters currently before the SC, so that I can make good decisions as a member of the SC”.

Emphasis must be on “filling your knowledge gaps in order to understand the scheme’s current situation“.

FT said that if a SC member comes across as merely wanting to embark on a fishing expedition, without making clear the purpose is to be able to tackle a current problem facing the OC, then often a strata mgr will indeed charge and get away with doing so.

The strata roll is part of the records whose ownership is the OC whilst being held by the OC’s agen, the strata mgr.

[TrulEConcerned]

Finally the people agreed to my suggested text (more or less) making the air cond applicant required to pony up plans and details of the installer as well as holding him responsible for R&M of the installation (and making good any damage to common property).

One owner wants the air cond by-law to include reference to the common property rights by law (CPRBL). This seems fair in light of the above.

But it raises a related question: in our scheme one lot has a terrace which it alone enjoys the use of. Access is only available through that lot.

[This requires a separate thread which has been opened HERE – JT]

 

 

[TrulEConcerned]

Quirky, thanks for your many points.

You wrote “You don’t say if you are an office holder on the strata committee, but only the secretary (or delegated strata manager) has the authority to issue any demand email to the AC installation applicant. Decisions about renovations are made by the strata committee at a properly convened strata committee meeting, and not by individual committee members”. Sorry I was unclear. I am the Sec.

You indicate that ” (I) should have sent that email to the strata manager and strata committee secretary, and request they arrange a strata committee meeting, with the substance of your email as an agenda item. Then the committee could make a decision about sending those demands to the owner asking to install an AC”.

What happens if the committee decides not to require the matters I listed to be addressed by the applicant? That is, no need for plans, no need for proof the installer is insured or qualified and no obligation for the applicant to pay for repairs and maintenance of the A/C? If the majority vote that way, is such a decision legally valid?

The strata mgr decided the matter should go to a EGM. Is that correct? I think your point on “minor renovation” and that the venue for such a decision is a strata committee meeting makes sense.

 

 

 

 

[TrulEConcerned]

Jimmy, I just established the a/c proposed is reverse cycle split system.

[TrulEConcerned]

Kaindub, you mention that “its good governance to have the strata manager and the committee look over these types of applications and advise the owner of any prerequirements. But dont be obstructive”.

I don’t think you are aware of how clueless some strata managers are and how ill equipped some committees are.

One owner suggested we use a by-law he found in another strata and that was accepted without a peep by the strata manager, even though it contains terms that have no relevance to our strata.

As for the committee to look over the application…, the person seeking to install the a/c is a committee member who thinks no paper trail eg listing the qualifications, experience and insurance of the installer is needed.

[TrulEConcerned]

@Jimmy

Thanks for the reply. I am not asking for more than I have seen asked at other schemes. In this scheme nobody asked in the past for approval so there is neither a by law in place nor a template for submitting an application.

In my email to the applicant, with a CC to the straat mgr, I made clear that I want the matter approved speedily but that no corners be cut and that the OC be protected. I mentioned “protection” because I was told of a case some years ago when an approval was waved through and when the A/C unit broke down the OC was asked to repair it. NCAT mentioned a colossal error by the OC when it drafted the by law: it did not specify who pays for what repair or maintenance.

I agree about not projecting the worse case possibility.

The power issue is a good one, thanks.

[TrulEConcerned]

I am in NSW, so can’t help much other than ask if you have you looked at the legislation

• Body Corporate and Community Management Act 1997

at Part 9 mention is made of “Adjudication Generally”.

if you have not, then that would be a good start.

(Of course you may well have already seen the legislation).

[TrulEConcerned]

@Jimmy -I hear you. It may not require a special resolution. But what of my query about the level of detail to be supplied. Can an OC blindly wave through an application to install without propert documentation from the installer? All we have is a short very informal email.

@chesswood – you make a good point. Thanks.

 

[TrulEConcerned]

A key reason why records are “unavailable” is that there are no penalties imposed on SC members for:

1. Not storing documents securely; or for

2. “Misplacing” or “losing” documents over time when the SSM Act requires (at least) 7 years of paperwork be kept. Surely the onus is on the SC as they prepare agendas, host meetings and prepare minutes with or without the aid of a strata manager (who in my experience always say they are mere “agents” of the SC/OC and deny liability). It is reasonable to assume even if SC members past or present do not have hard copies of documents – a long bow I agree – surely they have electronic copies which they should be compelled to share.

I recall one scheme I was involved with that required me to go to NCAT in order to be allowed to inspect the books at the strata manager’s office.

When I got to the office I was given the books and was appalled that many pages were ripped out of the Minute book. Naturally when I confronted the agent and the SC, each pointed the finger at the other.

If memory serves me well, I even photographed the partially denuded minute book.

As to digital records – the problem with that is that a cunning committee member or members will not hold properly constituted meetings for as long as he, she or they can. That means that decisions of the SC and possibly OC will be informal and w/out an agenda or minutes and hence w/out a record.

 

[TrulEConcerned]

A few years ago I applied in NSW for compulsory strata mgt.

I recall applying under s. 237 and s. 232 with the attitude that if NCAT believes that orders I sought under s. 232 were superfluous, either staff would tell me when I filed the papers or the Member at the hearing would tell me.

What helped and will help you is if you – BEFORE FILING WITH NCAT – can identify a strata managing agent happy to take on compulsory strata mgt. If so, get him to send you his proposal which should:

1. Include a letter from him addressed to NCAT informing that his firm is happy to take on the role for a term of 1 year (this can no doubt be extended); and

2. His contract detailing the terms ie cost etc of the compulsory appointment.

Include those papers with your documents when you file at NCAT.

Note: many applicants assume that if they seek a compulsory manager then NCAT will pick a compulsory strata mgr for them. I don’t know how common an approach that is, but do know that if the applicant identifies a strata mgr and includes the papers listed above in the filing, then it’ll be straight forward for NCAT to order that particular strata firm if NCAT makes a s. 237 order.

My observation for what it’s worth: Do not assume that NCAT will hand down an order under s. 237. In my case NCAT did not, citing that to do so “is a very big deal and is the exception and not the rule” when an applicant comes seeking it. NCAT seems to want matters sorted out b/w the warring parties in a civilised if not amicable manner (no matter how long it takes) rather than hit the nuclear option of s. 237.

Just my 2c.

[Author]

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