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Just – the overarching responsibility for the on-going maintenance and repair of an area of common property covered by an Owner’s exclusive use privilege should be prescribed in a Special By-Law (SBL).
However if there’s no SBL or if any that does exist doesn’t specifically provide that the maintenance / replacement of a garden tap/s within that area is the Lot Owner’s responsibility, then if it’s downstream (i.e after) the Lot’s water supply isolator then it’s the Lot Owner’s responsibility, and if it’s on the common supply (i.e controlled by the main water supply isolator) then it’s the Owners Corporation’s responsibility.
Costa – Schedule 3 of the NSW Strata Schemes Management Act prescribes how Executive Committees must function, and Clauses 6 & 12 set-out the requirements for Meeting Agendas and Minutes.
So there’s no need for you to compel your Committee to provide evidence of the above because neither is discretionary, and as you would know from responses to your previous posts Sect 108 enables you to inspect Agendas, Minutes, and indeed any other records of the Owners Corporation.
On a more general note, whilst I can appreciate why Committees may choose not to formally meet to consider every single matter that’s been raised by an Owner and to instead group those together for periodical consideration at properly convened Meetings, I must say that the longer I read and respond to posts on this Forum the more accustomed, but not accepting, I’ve become to the fact that many, many Plans are managed on the basis of a wink and a nod, and too often with little adherence to the provisions of the Act.
In my experience that always works well until the wheels fall off!
Skye – what you’re talking about is a redevelopment of your Strata Plan where right now every owner in the building would need to vote in favour before such a move could even be considered, and from 1 July 2016 the procedure becomes even more detailed so as to ensure that owners like you are not financially disadvantaged or in any way forced to agree to something that you really don’t want to.
As I said the process will be detailed, and in summary involves:
1) A General Meeting of the Owners Corporation (i.e. all owners) where a majority (51%) would need to vote in favour of just further examining the details of a proposal such as the one by your local RSL Club
2) Then only if that majority votes in favour, they’d need to elect a Committee to undertake that detailed examination of the RSL’s proposal, including precisely how owners who want to stay can be allocated another unit in the new building and who it is will pay for the associated costs such as legal costs stamp duty, who is is will pay for their alternate accommodation in the interim, and how those who want to sell and move elsewhere will be compensated and how that amount will be calculated.
3) Then the Committee has to report back to all owners at yet another General Meeting where for anything to proceed further at least 75% of owners would have to be in agreement with everything in #2 (above)
4) Then there’s another General Meeting where for the RSL’s proposal to be formally accepted at least 75% of owners have to again agree, this time based on the units of entitlement of their units – so the higher your levies the more your vote counts.
5) Then your Owners Corporation needs to inform the Registrar General of NSW Land & Property Information (the old Lands Department) of what has been decided.
6) THEN FINALLY if any owners such as you remain opposed to what’s proposed, you can have your say at the NSW Land & Environment Court, where a Commissioner will make sure that all owners have been treated fairly and that items 1- 5 (above) have been properly followed.
So rest easy Skye, as the procedures that I’ve summarised have been deliberately designed to ensure that people such as you are not stressed by any proposal such as the one from your local RSL to redevelop your building, that all your concerns are properly listened to, and that you’re not pushed into making decisions that you’re not at ease with.
The smoking incident wasn’t about a breach of by-laws but was rather about an Owner/Landlord not attending to complaints about his tenant’s habit.
In answer to your question, NO an owner cannot specifically compel their Executive Committee or the Owners Corporation to issue a Notice-to-Comply (with a by-law), but if a properly supported (i.e. with evidence) formal request (i.e. via a Motion to be placed on the Meeting Agenda) for either to do so by an owner is refused or has not even been considered after the expiry of 2 months from the date of the request, then that owner can seek Orders under Sect 138 of the NSW Strata Schemes Management Act (1996).
howdee – I assume that you’re referring to common property access keys, where as the landlord you are indeed required to provide one to each tenant shown on the Residential Tenancy Agreement (RTA) for your unit, and may charge / pass on any legitimate fee to other occupants who also require one.
As for the security deposit, it’s quite common for Owners Corporations to resolve to use that means to ensure that occupants attach some ‘value’ to their means of access to the property so as to avoid site security being compromised when access devices become like backsides (i.e. where everybody has one), and of course to cover its cost of administering the system.
So in that context I don’t regard a $100 security deposit as unreasonable, and it’s only in the event that you choose not to return common property key/s that are in excess of your needs at the end of a RTA or if a key was lost would that deposit not be refunded.
In the overall scheme of things a few hundred dollars is a deductible drop in the rental ocean, but if you object you can always raise your concerns by way of a Motion on the Agenda of your next Annual General Meeting.
Winston – as your AGM is fast approaching and you’ve had no responses to date, I’ll jump in.
Regarding a limitation on matters to be considered by the Executive Committee (E/C), notwithstanding any specifically imposed by the Owners Corporation (O/C) under the mandatory Agenda item to that effect at each AGM, if a Scheme has no Registered By-Law covering a matter such as site security, then any proposal such as for the installation of CCTV Cameras must be decided by the O/C, where in the particular instance you raise a special resolution is required (≥75% in favour under a poll-vote) as the Cameras would be an an addition to / a new structure on the Common Property (Ref Sect 65A).
As for General Business at AGMs, whilst that’s a legitimate item on the Agenda where some worthwhile discussions may take place, ONLY specific Motions that have been included on the issued Agenda may be voted upon / resolved one way or the other by those present an entitled to vote (including by proxy).
It’s too late for you to on this occasion submit any Motions (such as re the CCTV) on the Agenda for the AGM, but for future reference have a look through THIS document as produced by the NSW Department of Fair Trading (there’s a section at Para 3, P19 re Agenda Motions).
Millie – it’s awfully difficult for you to influence proceedings at an AGM when you couldn’t personally attend, but notwithstanding that and the foibles of the NCAT you would in my opinion make better progress there if you were to concentrate one-by-one the many items of low-hanging fruit that your posts have identified instead of going in boots-and-all for the statutory appointment of a Strata Manager.
As but one example, the Chair’s refusal to conduct a poll vote would be worth a challenge under Sect 153 particularly in circumstances where the result of the vote as taken likely produced a different outcome.
Millie – I’m reluctant to ask about what it was that you took to the NCAT and about the stated rationale behind its decision to send you “packing”, so suffice to say that it’s a pity that their reported decisions still seem to be too often determined from a spin of that oft-mentioned chocolate wheel that it inherited from the former CTTT; same jockeys, different horse!
Regarding your AGM, I’m afraid that your elected Executive Committee Chairman will be able to chair the Meeting and to exercise those proxies that he’s farmed UNTIL the new Legislation comes into force in July 2016, where-after no individual will be able to hold any more then one (1) proxy for Schemes having less than 20 lots, and for larger Schemes a number of proxies equal to 5% of the total lots.
A couple of long-shots; ask the Chairman to let you examine all Proxy Forms before the commence met of the Meeting to ensure that each is properly completed and to make ineffective any that aren’t, and to have the block of owners that’s collectively pulling its hair out call for a poll vote on all Motions that it concerned about. Even if the outcome of the poll vote is the same as it would have been under the one vote / one value system, calling for the former will at least send a message to the others in attendance.
Murray – unless one or more of the items shown in the shaded box in my last post #5 has been applied to your Plan, then due to its date of registration (1970) there’s no requirement for the Owners Corporation (O/C) to arrange fire safety inspections other than for piece of mind, where any of an inspector’s reported “requirements” are actually suggestions.
So regarding the suggestion about self-closers being fitted to entry doors and their asbestos content, if those doors are in fact fire rated then they’re supposed to be kept closed in order to prevent draughts facilitating the passage of fire from one part of the building to another, and provided the asbestos is stable (i.e. within the original structure of the doors) then it’s not an issue.
Personally I wouldn’t worry about self-closers on entry doors because as you quite correctly state people will prop them open, but from a due-diligence perspective I’d certainly ensure that the O/C took a proactive stance to making residents aware of the fact entry doors must be kept closed, and why.
JC – notwithstanding the differing approach to Strata Development Applications by Councils (about which I’m not surprised), Clause 49(1) of the NSW Environmental Planning and Assessment Regulation (2000) provides that a Development Application (DA) may be made by the owner of the land to which the DA relates or by any other person with the consent, in writing, of the owner of that land.
There’s no doubt in my opinion that the Owners Corporation (O/C), as the entity / collective of all lot owners is the “owner of the land”, so the resolution of your conundrum comes down to what numbers of owners voting in favour of submitting the DA constitutes a consent by the O/C as a whole, and whether the change in the use of the Scheme to permit short-term occupancy is covered by the provisions of Sect 65(A) of the NSW Strata Schemes Management Act.
The easier answer first – with regard to Sect 65(A), it prescribes that a special resolution is required for an O/C’s prior written consent to any addition or alteration to, or to the erecting of a new structure on the common property, and as much as I’d like to agree with your preferred position and that of others who have commented on this, I don’t think that a proposal to change the use of lots in a Scheme is captured by this Section, that appears to me to relate just to physical changes involving common property.
So to the second matter concerning the required numbers of owners voting in favour of a motion to change of use of lots and consequently to be in favour of submitting a DA to Council. If I can change the scenario slightly to one where a developer had completed and sold part of newly built Scheme, where an O/C had been formed, and where that developer then wished to amend the Development Contract (DC) that they’re required to submit to Council following its approval of their DA.
If the developers proposed amendment to the DC involved a change to the use of any completed/sold lots or more commonly to lots in the next stage of the development, then NSW Land & Property Information (L&PI) would require any such application to be accompanied by evidence of a supporting special resolution of the O/C.
So maybe contact L&PI to ascertain if their requirement for evidence of a special resolution of the O/C to be provided by a developer in the above scenario would similarly apply to your circumstances.
Millie – in response to your questions:
Provided the appointment of a proxy is on the Prescribed Form, indicates how the appointee is instructed to vote (e.g. on all matters), is dated, and is given to the Secretary at or before the General Meeting to which it applies (or at least 24 hours before for Schemes of >100 Lots) then an appointment of a recognised office holder such as the Executive Committee “Chairman” as proxy would be valid.
However (there’s always at least one of these in matters Strata) votes by Owners at a General Meeting that resolved to do or not do something that’s prohibited or prescribed under the Law, such as to comply with the conditions of a Development Consent for the Scheme issued under the NSW Environmental Planning and Assessment Act, or with an Owners Corporation’s duty of disclosure under the Federal Insurance Contracts Act, or not to enforce compliance with a By-Law in accordance with the NSW Strata Schemes Management Act (SCMA) IF a majority were of the reasonable opinion that a Breach had in fact occurred, would all be invalid.
That raises the matter of Executive Committee Meetings (ECM) where such “reasonable opinions” regarding Breaches are usually formed, and where the entirety of Sch.3 of the SCMA sets-out the “Constitution” of how such Meetings are to take place, including Notice of Meetings, Agendas, and Minutes, and again if as your post indicates these procedures weren’t followed, then the entirety of the meeting that your Strata Manager arranged with himself would be invalid; as clearly it’s not an ECM.
There should have been an ECM immediately after your recent AGM where, among other things the newly elected Committee Members would vote on the appointment of Office Holders for the coming 12 months.
I’m guessing that despite their past shenanigans the proxy-farming Owner was re-elected as a Executive Committee Member and then re-elected Chairman at the following ECM, but while you get what the majority votes for, there is another light at the end of the tunnel.
In addition to the invalidity of some AGM resolutions, despite the fact that your Strata Manager may be delegated the role of Secretary (e.g. to convene all meetings) that other “light” is that the elected Secretary can by written advice to the Strata Manager assume that role themselves for a particular meeting or more generally.
So as I recently advised another Flatchatter, don’t allow the tail to wag the dog to a greater extent than what’s acceptable to the majority.
deepfriedchips – I understand why, as a new Owner, you would wish to ensure that your approach to the Owners Corporation (via its Executive Committee) on the matter of your proposed renovations is cordially conducted.
However as that’s not having the desired result and as your Plan is in NSW, I’d suggest that you now more firmly, but still cordially, advise your Strata Manager that should a decision not be received by you within say 7 days, that you will be seeking Orders under Sect 138 of the NSW Strata Schemes Management Act (SCMA), where as you’ll see Clause 2(b) requires Owners Corporations (O/C) to make such decisions (i.e. to “exercise its functions”) within 2 months of it receiving an application such as yours to do so.
Re. the Extraordinary General Meeting, that may be convened at any time by the Secretary or in their absence another Member of the Executive Committee (E/C), but otherwise only by a “requisition” to do so by a minimum 25% of Owners, with that percentage calculated from the collective units of entitlement (UOE) of their respective Lots and the aggregate UOE of the Plan.
Re the contact details of E/C Members, any Owner is able to obtain those details by application to the O/C via its Strata Manager under the provisions of Sect 108 of the SCMA.
Finally by all means persist with your polite approach to all things strata, but perhaps moderate that with the benefit of the knowledge that both the Building Manager and the Strata Manager have been engaged, and are paid by the O/C of which YOU are a Member; so don’t permit the tail to wag the dog too much!
….and even the local veterinarians take it seriously as is evident from that most recent $215 inspection and this letter to which my post (#6) referred:
To the Strata Corporation XXXXXXX
Upon request from the Owner of Unit 4 in the apartment complex, Ms. xxxxxxxx, I visited the property on Wednesday 14/10/15 to inspect the premises suitability for the housing of two (2) dogs.
The dogs are xxxxxxxx an 8 year old Poodle Cross dexsexed male, Microchip Number: 930012011124921 and xxxxxxxx a 6 year old Maltese Terrier desexed female, Microchip Number: 943084321058880.
The owner’s purpose for the premises will be as a holiday apartment which she visits infrequently, bringing the dogs with her when she comes.
Given the dogs age, size and demeanour they are essentially lap dogs whose temperaments are very placid, and from my inspection, they are well looked after and cared for.
As long as they are allowed the chance to go out for walk/exercise frequently and are not living at the premises permanently, from a welfare point of view I do not envisage any problems with the current arrangement.
Kind Regards,
Cobra – as Jimmy has stated Cl 63(4) is not as definitive as the ACT’s provision, and for that reason I don’t think that it’s a worthwhile try-on in your situation where it’s Owners individually and not the Owners Corporation collectively who’s responsible for providing access to the Lots, and where an activity such as that is not really “work” under any reasonable interpretation.
Whilst I agree with your logic, an Owners Corporation can’t pass-on a third party’s re-inspection / no access fee by adding it to Owners’ levies, but it certainly can as I think Jimmy’s suggesting add it to their levy contributions invoice as an additional line item, which can’t in my opinion have the permitted interest applied (because it’s not a levy contribution) will, if unpaid, remain as a debt against the Lot that will eventually be recovered (even at the time of a sale).
We’ve had similar problems, and have found that additional fees such as the ones you mention are more readily paid when the charge appears on Owners’ next levy contributions invoice as opposed to on a separate piece of paper.
theora – in addition to the requirements of the NSW Strata Schemes Management Act (1996) where Sect 65(A) requires that if the deck and/or its associated structure is attached to any part of the owner’s Duplex, then it’s classified as an addition to the Common Property that does require the prior written consent of the Owners Corporation, and the requirements of the By-Laws about the appearance of the Owner’s Lot (of which the yard would be a part) from yours, the following are some relevant requirements for compliance with NSW Exempt Development provisions in addition to those that you’ve mentioned, where the deck:
- cannot not have an enclosing wall higher than 1.4m
- must be a minimum 900mm from all boundaries of the Lot
- must be no higher than 3m at its highest point above the existing ground level
- if it is a roofed structure attached to a dwelling, must not extend above the roof gutter line of the dwelling
- if connected to a fascia (or to the wall of the duplex in my opinion), be connected in accordance with a Professional Engineer’s specification, and
- be constructed or installed so that roofwater is disposed of into an existing stormwater drain.
So far as your Strata Manager’s (lack of) interest is concerned, with the benefit of the above information and IF the deck will be attached to any part of the Duplex and/or IF it will be in your opinion inappropriate when viewed from your Lot, then advise your Strata Manager in writing of your concerns and tell him to stop washing his hands and to get on with doing his job post haste.
Similarly, chase the Council IF you believe that any of the requirements for an exempt development are being breached.