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Jimmy, it seems I was unclear. Of course 3 out of 10 votes is powerful and a possible veto wielding situation. What I meant was that it doesn’t help Al, the original poster, to dwell on such matters as (a) she can’t control and (b) is a function of democracy.
Sammy – (A) Does your by-laws insist on carpeting? If so, then your neighbour is breaching the by-laws.
– (B) Do you think that if the neighbour had carpeting then the noise affecting you would be less?
– (C) If the answer to (A) and (B) is “yes” then write to your OC insisting they order the neighbour to comply
with the by-laws. Keep a log of when noise disturbed you: date, time and duration.
Good afternoon Al,
Your wrote:
(1) According to Domain 35% of the properties in the building is an investment.
Don’t believe everything you read on Domain or other sales websites as often the information is out of date. Furthermore, what difference does it make if the unit are owner occupied or investments? I am sure owners (occupiers or not) want to maximise the value of their properties and will act accordingly;(2) At the last 4 AGMs, 3to 5 people attended.
Do you mean 3 -5 attended in person or a total of 3 – 5 were represented in person and by proxy?Also, how many turn up is not indicative of whether the scheme is a democracy. It is only indicative of interest or lack of exhibited by owners.
(3) The idea that one person that we haven’t even met, seemingly has a lot of power over the building we may own in, makes us feel uneasy.
Objectively, whether you meet him or not is not relevant.Your concern about one owner “seemingly has a lot of power” is misplaced. If he owns three lots and you one lot, regardless of the number of lots in the strata scheme, do you expect to have the same “power” as him? Of course he has “power” but no more than if he had one lot and was mates with others who would always vote with him.
The issues you should focus on are (i) are levies reasonable; (ii) is the state of the building reasonable; (iii) Are there minutes of meetings you can inspect?; (iv) is the place expensive to upkeep eg are there lifts? A pool? A gym? caretaker? and (v) is there a strata managing agent or does the committee run the place?
Living in NSW, I agree with Jimmy regarding photographing records. If you want to print them later, often it helps if convert the photos to PDF and then print.
Photographing means you can avoid the nasty per page fee charged by the agent for any record.
Access to the records is (at least in NSW) time based, where there is a minimum fee for the first hour and then a fee for every extra half hour. By photographing you’ll be able to minimise the cost of accessing. On arrival, the records should be on a desk or in a box ready for you to inspect.when inspecting the records, if a document looks half relevant, don’t read it at the inspection. Just photograph it and move on to the next page.
Remember to make a note of what records are “unavailable”. Often a committee member or an agent, will not include certain records or remove certain records from the collection as it suits him/her. I had problems accessing bank statements when I queried certain expenses. As I was not a committee member I could not ask the bank to reissue the statements.
Hi TheHood
You mention: “You didn’t mention FT might re-educate the recalcitrant agent”
true i did not, because (a) who knows if they will educate him; (b) is there a point inasmuch as how can FT know if the education will stick with him; and (c) is the re-education even mandatory?
You also mention: ” one might find themselves asking what is the point of the rules if there is no real consequence, they might also find themselves asking how did this person qualify for this licence … so many questions”.
I agree 100% with you.
It seems to me that the rules governing (in this case) strata agents – but seemingly applicable to all real estate agents – were written by the strata industry itself.
How is it that if I complain and FT confirms my allegations, than I am not allowed to know what penalty is handed out to the agent? What an outrage.
What next? A thief steals your car and a pressure group of ex cons lobbies the state not to disclose any penalty handed down to a thief?
Also why must an agent be the subject multiple customer complaints in a month before he goes on a name and shame register?
Hey again TimSP,
Re: Post 2 of 2
5A. Independent of the outcomes of the strata manager doing as the OC instructs him, when you have evidence that the strata manager is failing to abide by the conduct expected of him as listed in the Stock & Station Agents Act, THEN you should complain to NSW FT about the strata manager in his own right. This is quite separate from any complaint you may have against the OC. In your complaint, the more instances of what you consider impropriety you can show, the better. For instance, you could mention a lack of transparency (the manager did not reveal any conflict of interest); any flouting of the SSM Act (eg taking longer to issue minutes than is mandated under the SSM Act); on the same matter, the agent telling you one thing and telling another owner something different etc;
5B. Some strata managers don’t want to be bothered by owners other than SC members. Then again many strata managers love being bothered as they charge for every email or call received and made. In regards to you being told not to communicate directly with the strata manager, if I were you, I’d cover my back by emailing the SC on issues relevant to the scheme with a CC to the strata manager. Or vice versa. Wait to see if anyone tells you who you can contact or if your emails are ignored;
5C. Failing to list nominations – did you provide the names in time? Can you prove this? If yes, then this is a good example the strata manager has breached code of conduct demanded of him under the Stock & Stations Act;
Insufficient evidence could lead NSW FT to conclude that a “potential” breach occurred. So your job is to either pony up more evidence in that matter to convince NSW FT that a breach did occur. Alternatively, more instances of “potential” breaches should convince NSW FT that there’s a pattern of something not quite right going on.
Bear in mind, both NCAT and NSWFT get truckloads of complaints, many that don’t hold water. But in order to establish which complaints are prima facie justified, NSWFT and NCAT need time to assess them. So don’t be surprised about the time between your filing and when the matter is heard.
That said, before going to NCAT against the OC (under the SSM Act) applicants would have to apply for mediation with the other party under the wings of NSW FT. While attending mediation can be turned down by the respondent, in this case the OC (for the SC) it is in most cases a mandatory prerequisite before you can apply to NCAT. If you name the officers of the SC in your suit, then they also have the option to turn up or not to mediation. If a respondent or joint respondent(s) fail to attend mediation, the fact remains that you ATTEMPTED mediation and NSW FT will send you an email confirming this. That’s all you’ll need to apply to NCAT.
Hey TimSP,
Re: Post 1 of 2
Let me reiterate, by expanding on a few points made earlier. Sorry if it sounds repetitive, but I feel they are worth stressing:
1. NCAT regards the strata manager as merely the agent of the OC and hence while doing the bidding of the OC, the strata manager is not liable (for any unfortunate consequences). The OC is usually held liable;
2. Most management agreements b/w OC and strata manager emphasise this position. Especially, at least from what I’ve seen, in management agreements prepared by the Strata Community Association and offered to an OC by the strata management company;
3. As an owner under the Strata Schemes Management Act (“SSM Act”) you alone can take action against the OC for its failings. If you’re unhappy with the conduct of the Strata Committee (“SC”), in carrying out tasks dlegated to it by the OC, again that would be action against the OC. As stated earlier, if you really want to hammer home the point that the SC members have been derelict in their duties, by all means file a complaint against the OC and name the relevant person(s) on the SC as joint respondents in your application;
4. I agree with the NCAT statement about disallowing your order against the strata manager. As I understand it – and I am not a lawyer, just an owner who has suffered interactions with some committee members who are unfit to to sit on an SC – the OC is the entity that hired the strata manager and so only the OC can take action against him. You personally did not hire the strata manager. You may ask the OC to act against the strata manager for failing in his job, but if the OC declines to act, you cannot do so as an owner.
If you claim there is a conflict of interest, then that’s a feather in your cap against the sleepy SC. Can you show they did not act in good faith. In this regards, see the SSM Act, s. 260
260 Personal liability of officers of owners corporations and others
(1) A matter or thing done or omitted to be done by any of the following persons, or a person acting under the direction of any of those persons, does not, if the matter or thing was done or omitted to be done in good faith for the purpose of executing functions as such a person under this or any other Act, subject any of the following persons or person so acting personally to any action, liability, claim or demand–
(a) an officer of an owners corporation,
(b) a member of a strata committee.
(2) Any such liability of an officer of an owners corporation or a member of a strata committee attaches instead to the owners corporation.
If you can prove a lack of good faith by the SC, then that’s a strong point.
Jimmy, I agree about NCAT being reluctant to hold strata managers to account. Could it be that the regulations under which FT/NCAT police the behaviour of strata managers were proposed by the strata management industry?
Monique,
Other posters make some good points, but I’d like to clarify (and elab0rate) on a couple based on recent experience.
1. Many folk use their car space to store household goods. Your best chance to get the items removed is if you can prove they are a fire hazard. If so, report the matter (with photographs) to the strata committee (do you have one?) and managing agent. I recall (in one scheme I am involved in) folk storing old chairs and tables in car spaces. It was a ghastly sight. The complainant (not me as it was nowhere near my side of the garage, so it did not interest me) got nowhere appealing to the selfish individual nor to the strata committee;
2. If non hazardous items are stored entirely within a car space, some will argue that you have no case (unless there are by laws relating to this);
3. Is there a by law prohibiting owners and tenants from
(a) using car spaces for anything other than parking motor vehicles?; and
(b) parking anywhere but their allocated car space?
If not, then such by laws would be a good addition to your scheme’s menu of by laws. They would be stronger than a by law merely prohibiting parking in the visitor’s car spaces; and
4. While a Notice to Comply (NTC) with a by law is often suggested, please note that according to NSW Fair Trading:
The strata committee, or owners corporation (if it has decided not to let the strata committee issue this Notice), must convene and hold a meeting to decide to issue this Notice or to issue notices for the type of breaches concerned in this Notice, and record its decision in the minutes. Alternatively, a managing agent who has been delegated the function may decide to issue this Notice.
Note: even if you have no committee and the agent was delegated all the powers, he will most likely dance to the tune of the person who championed his hire. Say that person still lives in your complex and has a view on the matter, it’s short odds that the agent will ape those views.
I have seen too often situations where the strata committee refuses point blank to consider issue such a notice, let alone issue a NTC especially when the offender is a committee member.
So at the very least you must (a) familiarise yourself with the by laws of your scheme; (b) write to the strata committee and managing agent listing your concern – or just the agent if there is no committee – pointing out if you believe that a by law or by laws are being breached, attach photographs and state what outcome you want; and (c) ask for your letter to be included in the agenda for the next meeting be it a strata committee or general meeting. That way, while the committee (if there is one) and agent may do sweet nothing, the evidence is clear: you brought the matter to their attention and they declined to act.
If the strata committee or managing agent DECLINE to list your letter on the agenda, then they are failing in their duties and that will require a different strategy on your part.
Good morning new2newy,
Take Jimmy’s advice and call Marrickville Legal Centre to set up an appointment.
I took a friend there some time ago and recall what the process was in her case:
1. PHOTOCOPY all related paperwork and take the photocopies with you. Leave the originals at your home;
2. OUTLINE your case to the junior member of the team, who’ll be the person you meet at the initial appointment and
3. STAFF (higher up the food chain at the Centre) will look over your case and contact you in due course.
Note: (a) Emphasise when calling for an appointment that you’re a pensioner; and
(b) On the phone, press the point that the matter is one of financial hardship.
Hi Tim,
Welcome to my world.
Kaindub is correct: action by an owner under the SSM Act at NCAT can only be against the OC or committee members. Or the OC and committee members.
Jimmy is correct when he implies that under the contract offered by an OC to an agent, the latter is immunised against alleged breaches of the SSM Act inasmuch as such breaches would be held by NCAT to be committed by the OC. This of course gives rise to a related question – not asked by you but pertinent to your case and that of others in the same boat – which is: why are those owners who nominated and/or approved hiring such a manger not automatically on the hook for the appalling outcomes of their decision to hire him? In many cases the approval at a general meeting to hire a manager is not unanimous.
I suggest you do as I did, when I had an issue with a strata mgr doing the bidding of the committee in violation of his duties under the act under which he is licensed: the Property & Stock Agents Act.
Make a formal online complaint to Fair Trading about the agent and pony up evidence how you believe he breached the Property & Stock Agents Act. You can do this as an owner. You don’t need others to join you nor do you need a general meeting to get this ball rolling.
If FT agree that your complaint is reasonable, they will contact the agent and if needed, investigate. One outcome is that their investigation will prove your allegation(s) and if so, FT will tell him that they found him to be “non compliant” with the relevant legislation.
The fly in this ointment is that FT does not have to tell you, the complainant, what sanctions/penalties/directives/instructions they issued/levied on him.
If you’re lucky, you’ll have the outcome I had: (1) FT investigated; (2) FT informed the agent that in their view his behaviour was “not compliant”; (3) FT told me that they found the agent “non compliant”; and (4) quick as a wink the strata manager resigned and we had to find a new manager.
Until the committee is made aware that their shirking of the law will not go unchallenged, they will continue in their opaque way of managing (or possibly mismanaging) the strata.
In order to get them to sit up and listen
File a complaint, which requires MEDIATION as the first step before seeking an application for a hearing at the Tribunal (NCAT) can be filed.
Go to
https://www.fairtrading.nsw.gov.au/
Housing and Property
Advice on Strata Disputes
Scroll to (3) Mediation Service
Apply online
Note you are applying against the Owners Corporation not any particular person or committee.A mediation session is for a head to head with a rep from the strata committee or strata manager, whosever they choose to represent them. You must seek (also called “attempt”) MEDIATION before having the right to go to the Tribunal. Often the other side will not attend, as it’s not compulsory, but regardless of them turning up or not, the record (being letter from the Mediator at the end of the session sent to both parties) will reflect that MEDIATION was attempted and what transpired therein.
In your compliant, mention that the committee makes decisions in secret and has shown a disregard for
STRATA SCHEMES MANAGEMENT ACT 2015 – SCHEDULE 2
which details how meetings are to be run and what notice MUST be provided to all owners (see (a), (b) and (c) below).And mention s. 24 of the STRATA SCHEMES MANAGEMENT ACT 2015 – s. 24, being
24 Order invalidating resolution of owners corporation (see (d) below)
In your complaint mention (a) how often meetings are to the best of your knowledge held in secret; (b) what has been the result of those closed door meetings i.e how damaging financially it has been for you (and how the owners were denied a transparent decision making process; (c) how long after the opaque decision making took place, you were made aware of those decisions; and (d) that you believe the motions passed in secret must be invalidated as they were made without due process.
After you apply online, some 12 hrs later you’ll get a confirmation with a reference number. 10-14 days later you’ll get a date for mediation.
I urge you to apply pronto. That way you’ll catch staff before the department is closed and all going well, you’ll be advised of a mediation date before xmas, most likely for Feb.
In my several appearances at mediation and NCAT, I have not seen consistency applied on many issues. But I have indeed seen that mediators and the Tribunal look at documents, such as proxies – when they are not completed in a manner that conforms 100% to the letter of the law – and ask themselves “what was the intention of he or she who completed the document”?.
If the intention is clear to a layman, then the mediators and the Tribunal consider that document as though it was completed 100% in conformity with the SSM Act.
If the agent has previously been difficult and not transparent then you should list those instances in case you take the matter further.