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Rebekah – I don’t understand how it is that your twelve year-old niece could write letters to other residents without your knowledge of that, or of the letter’s content.
Be that as it may, as your niece is a minor her actions on this occasion were your responsibility, and that is why the Strata Manager has sent you a letter about the incident, presumably at the request of those other residents whose children were the recipients of your niece’s letter/s.
It is unusual for a Strata Manager to react to complaints made directly by tenants, and whilst you’re only assuming that to be the case, if you’re in NSW then the document you’ve received has no consequences as it’s merely a letter (of complaint) as opposed to a Notice-to-Comply with a specific By-Law issued in THIS format under the provisions of the NSW Strata Schemes Management Act after a Meeting of the Executive Committee so determines.
So if you’re greatly offended by the Strata Manager’s letter, then by all means respond, but personally as that letter carries no consequences to you or to your niece, I’d just tell her to in future act more responsibly (instead of as the neighbours do), and then suck it up and move on.
In answer to your questions:
1) YES – Sect 65 of the NSW Strata Schemes Management Act applies, although if the work cannot be classified as being an “emergency” (seek Council’s advice/support) then your Owners Corporation (O/C) must seek the Orders cited in the Section.
2) The Owner doesn’t have to sign the Special By-Law, but if it includes a provision that seeks to transfer future responsibility for maintaining all areas of Common Property involving the proposed second bathroom (e.g. floor tiles) from the O/C to the current and all future Owners of the Lot, which it should, then the current Lot Owner needs to agree in writing to that provision. The strict consequence of that decision is that the O/C would decline to give its consent to the Owner’s works, and typically Councils will similarly decline to consider a Building or similar Application for those works unless it’s first endorsed by the O/C placing its Common Seal on the submitted Application / Plans. Have a talk with Council’s Inspector and give them the “heads-up”.
JC – the Rental Agent is a Member of your Plan’s Executive Committee (E/C) because he was nominated, seconded, and elected by a majority of those who were entitled to vote at the last Annual General Meeting (AGM), and then elected Secretary at the following Meeting of the new E/C.
You mentioned in your first post that this individual exercised an Owner’s proxy to vote on the submission of a Development Application, but that’s only one vote, so a majority of the others who were present at what I assume was a General Meeting (because there a no votes by proxy at E/C Meetings) must have voted similarly.
So it’s not the Rental Agent alone who’s to blame (if any is to be apportioned) for the submission of the DA, but rather it’s the Owner who seconded his nomination and the majority of Owners who then elected him to the E/C.
You and like-minded Owners could correct that situation at the next AGM, but in my opinion there’s nothing additional to the actions that you or your Owners Corporation is taking with the Department of Fair Trading, with Council, and via a Special By-Law that may be reasonably taken, as under the provisions of the NSW Property, Stock, and Busines Agents Act that governs their activities, neither of you is a “client” of the Rental Agent and so you have no ability to complain.
Kenny – the “process” that’s been referred to involves the Owner concerned providing the Owners Corporation (via its Strata Manager in your case) with details of the renovations proposed including plans / specifications, plus contractors’ details including licenses and liability / workers compensation insurance certificates.
That information may be initially considered by your Executive Committee (E/C) with the assistance of its Strata Manager, who would usually advise whether or not the proposal may be consented by the O/C and if so under what conditions such as permitted work days/times (noise impacts upon neighbours), disposal of building residues, contractors’ parking, Council approval, and who’s to be responsible for the on-going maintenance / repairs of affected areas including of the Common Property (e.g. the roof).
As your Strata Manager has mentioned the need for a Special By-Law I’m assuming that none of relevance is Registered on your Plan’s Strata Title, and so a draft needs to be prepared by an experienced person (e.g. a Strata Lawyer) in order to formalise the aforementioned conditions, and to most critically make the current and all subsequent Owners of the Lot concerned responsible for all future maintenance / repairs of its renovated components, and not the O/C as would otherwise be the case.
In order for renovations and the Special By-Law to receive the consent of the O/C, a min. 75% of those voting (including by proxy) would need to do so in favour (as a “special resolution”) with that calculated on the basis of the Lots’ units of entitlement not by a simple majority (as a “poll vote”).
As for the costs, if the General Meeting is convened just to consider the Owner’s proposed renovations then they pay, and similarly if the Special By-Law relates only to that Owner’s proposal as opposed to being drafted such that it may be generically applied to all renovations involving the Common Property (the approach that I’d suggest, where the O/C pays), then again those Owners pay.
Now your O/C needs to decide what it does to, where possible, consent retrospectively to those other works that have already been undertaken by Owners; ask your Strata Manager or seek an experienced Lawyer’s advice about how best to do that possible in the context of a generic Special By-Law.
As you’ll read over and over again HERE in the specific Topic of this Forum that relates to renovations, it’s most important that all such works by Owners be properly notified to the O/C.
That’s critical in situations such as you describe where a change or addition is proposed to the Common Property (e.g. a roof-mounted skylight) where in the absence of a proper consent under the conditions of a Special By-Law the ongoing maintenance, repair, and replacement of those works and any related areas (e.g. roof tiles / capping) is as I’ve mentioned, by default the responsibility of the O/C ($$).
JC – notwithstanding advisory notations on the prescribed Proxy Form the relevant section of the NSW Strata Schemes Management Act is as follows:
(7A) Other limits on exercise of proxy – A vote by a proxy who is a caretaker, an on-site residential property manager, or a strata managing agent is invalid if it would obtain or assist in obtaining a pecuniary interest for, or confer or assist in conferring any other material benefit on, the proxy.
So as Jimmy advised, the activities of a local real estate agent who manages the short-term letting of some Units in your Plan is not captured by the provisions of Clause 7A (above), that relates to an on-site property manager who occupies part of the common property (e.g. a desk in the foyer) and who is engaged under a formal agreement by the Owners Corporation (O/C), not by its individual Owners.
That said, the submission by the O/C of a Development Application to the local Council would not be approved unless its Local Environment Plan enabled short-term letting to be permitted, and if as you seem to suggest that permission could be granted, then in addition to you and like-minded Owners immediately initiating the actions that Jimmy suggested, your O/C could still vote to Register a Special By-Law that among other things could prescribe how short-term lets must be “managed”, such as by restricting the numbers of occupants in Units, on-site parking, times of arrivals/departures, security access, and any number of similar provisions that, whilst not preventing short-term lets in contravention a Council consent, could well serve to actively discourage (if you get my drift) that type of occupancy.
You’ll need 75% of those Owners voting at a General Meeting (including by proxy) to pass such a Special By-Law, so best get started with lobbying.
danni – like Jimmy, I’m assuming you’ve obtained a copy of your Scheme’s Certificate of Title, where one of the Schedules shown on it will list the various “Dealings” against that Title including all Special-By Laws (SBL) that have been properly Registered.
They’ll be shown in numerical order, followed by a dealing number – typically having two (2) letters and and eight (8) numerals; like AF30234567.
Once you’ve written down each of those dealing numbers, open THIS page on the L&PI Website, type in the details, and after the on-line payment of $12.70, a copy of each Registered Dealing (in this case a SBL) will be sent to your device as an executable pdf document.
Remember though that this methodology will only find any SBL’s that have been properly resolved at General Meetings of your Owners Corporation and subsequently Registered using THIS form, as the so-called “Model” or standard By-Laws for Residential Strata Schemes contained in Schedule 1 to the NSW Strata Schemes Management Act and in Schedule 2 to the Regulation apply to Schemes whose Titles were Registered after 1996 and 2010 respectively once the first (ever) Annual General Meeting of such Schemes so resolves; as is routinely the case.
Here is our Plan’s Special By-Law as prepared by yours truly and Registered in 2013, and whilst it places some obligations upon the Owners Corporation (e.g. the Pet Register), as you’ll see it’s intended to ensure that Residents (i.e. Owners and Tenants) have to jump through a few hoops in order to get past first base, it addresses the size of the pet relative to the size of the unit, it covers the often wheeled-out scenario where every pet is claimed to be a “companion animal”, and provides a process to remove any pets that cause a repeated nuisance.
As I said, thus far it’s worked a treat as only committed pet owners, whose pets are consequently cared for and controlled, have bothered jumping through those hoops, and those who have had to produce and pay for a veterinarian’s inspection & letter have done so willingly (most recent cost of which was $215).
Perhaps most importantly, this SBL avoids our Owners Corporation having to say an outright NO to all pets, and to thereby leave that decision open to challenge on the NSW Civil & Administrative Tribunal’s decision-making “chocolate-wheel” by the smarties!
Special By-Law – Keeping of Animals
1. Definitions
In this By Law the following words have the meanings shown hereunder:
Household Pet means a domestic animal such as a dog, cat, bird, or fish that is traditionally kept for domestic purposes.
Pet Register means a register kept with the books and records of the Owners Corporation recording all information the Owners Corporation has received in connection with Household Pets kept on the Strata Plan.2. Pet Register
The Owners Corporation must establish and keep at all times a Pet Register recording all relevant information it has received in connection with Applications by Owners and Occupiers to keep Household Pets on the Strata Plan.3. Permitted
3.1 Subject absolutely to:
a. In the case of Occupiers (Tenants), the prior written consent of the Lot Owner (Landlord) to the keeping of any Household Pet on the Lot and;
b. In the case of any proposal to keep any dog on a Lot with a habitable area of less than 150m2, a written statement by a Veterinarian to the effect that he/she has personally, or has had inspected the Lot where the Household pet is proposed to be kept and that the Lot is suitable to humanely keep that dog, and only then;
c. This By-Law;
Owners and Occupiers may keep a maximum two (2) Household Pets on their Lot but may only keep one (1) dog or one (1) cat, with the only exception to that maximum being that the number of fish that may be kept in one (1) aquarium on a Lot is restricted only by the capacity (L) of that aquarium.
3.2 Nothing in this By-Law prohibits the keeping on a Lot or the use on a Lot or on Common Property of:
a. A Guide Dog or Hearing Dog, as permitted by Section 49(4) of the Strata Schemes Management Act 1996 (NSW) or by any Legislation that may from time-to-time replace or amend it; or
b. An Assistance Animal as described in Section 9(2) of the Disability Discrimination Act 1992 or in any Legislation that may from time-to-time replace or amend it, and which under this By-Law is additionally described as being a dog or other animal that is:
i) accredited under a Law of a State or Territory of Australia that provides for the accreditation of animals trained to assist persons with a disability to alleviate the effect of the disability;
ii) accredited by an animal training organisation prescribed by the Disability Discrimination Regulations 1996 or in any Legislation that may from time-to-time replace or amend it ; OR
iii) professionally trained to assist a person with a disability to alleviate the effect of the disability, and certified in writing by a Medical Practitioner as being essential to the provision of assistance to the Owner / Occupier making Application under this By- Law, and by a Veterinarian as meeting the standards of hygiene and behaviour that are appropriate for an animal in a public place.4. Prohibited
The following are not permitted to visit or be kept on any Lot or on any part of the Strata Plan:
a. Any animal that does not satisfy the requirements of Clause 3;
b. Any animal that is or becomes vicious or aggressive;
c. Any dog or cat that is not currently Registered with the appropriate Authority;
d. Any dog which is, or is at any time declared dangerous under the Companion Animals Act 1998 (NSW);
e. any dog which the Australian Government from time to time prohibits from importation into Australia;
f. All poultry; and
g. All reptiles.5. Application to keep a Household Pet on a Lot
Owners and Occupiers who propose to keep any Household Pet on their Lot must for each individual or different Household Pet make Application in advance and in writing to the Owners Corporation to seek its Consent, with that Application including at least the following information:
1. Everything specified at Clause 3.1a and 3.1b of this By-Law and;
2. for all Household Pets except aquarium fish:
a. its Species; and
b. its Breed; and
c. its Name; and
d. its Gender; and
e. its Veterinarian’s details (name and address); and
3. For all Cats and Dogs:
a. a photograph sufficient for visual identification; and
b. its Microchip Details / Number; and
c. whether it has been spayed or neutered; and
d. evidence of its current Registration with the appropriate Authority; and additionally
e. for those permitted at Cl.3.2, written evidence of the Guide Dog, Hearing Dog, or Assistance Animal’s accreditation, together with the information shown at Cl.3.2 iii) of this By-Law.6. Consent of the Owners Corporation
Any Consent granted by the Owners Corporation subsequent to an Application under Cl.5 must be in writing, will at least include the Obligations at Cl.7, may include other Obligations and Conditions, and will involve the Owners Corporation including all relevant information on the Pet Register.7. Obligations of Owners and Occupiers
In relation to any Household Pet except aquarium fish owned or in the care of an Owner or Occupier or owned or in the care of any Visitor or Invitee of an Owner or Occupier, the Owner or Occupier must:
a. Not allow any Household Pet to defecate or otherwise foul the Common Property;
b. Make good, or bear the costs of the Owners Corporation making good, any damage to Common Property caused directly or indirectly by any Household Pet;
c. Ensure any Household Pet is under full control, constrained, and wherever reasonably possible carried when it’s outside the Lot and whilst it’s anywhere on Common Property;
Ensure any Household Pet does not cause any annoyance, disturbance or nuisance to other Owners or Occupiers;
d. Ensure any Household Pet is constrained such that it does not escape from the Lot or enter onto another Owner’s or Occupier’s Lot or onto Common Property;
e. Ensure the living quarters of any Household Pet is maintained in a manner sufficient to prevent food residues, fur, hair, and plumage escaping from the Lot and from vermin breeding within the Lot;
f. Ensure that all waste generated by the presence and/or the keeping of Household Pets is treated and disposed of in accordance with any Conditions contained in a Consent of the Owners Corporation and, without limiting the generality of this By-Law, ensure that:
g. All waste of Household Pets is double-bagged or placed in large, strong bags before disposal in the Plan’s household garbage (but not recyclables) receptacles/; and
h. Ensure litter (e.g. cat litter) is never placed in toilets, and to clear or to pay the Owners Corporation’s costs of clearing any sewer blockage where the cause is identified by a Licensed Plumber/Drainer as being due to the presence of litter.8. Compliance
In relation to any Household Pet owned or in the care of an Owner or Occupier or owned or in the care of any Visitor or Invitee of an Owner or Occupier, the Owners Corporation may issue a Notice to that Owner or Occupier requesting that Owner or Occupier comply with any Consent of the Owners Corporation and/or with any part of this or any other By-Law of the Plan which the Owners Corporation believes has been breached by that Owner or Occupier.
If the Owners Corporation in its absolute discretion, and after discussions in good faith with an Owner or Occupier, forms the view a Household Pet on a Lot is or has become vicious or aggressive, or on three (3) or more occasions has been reported to the Owners Corporation as causing annoyance, disturbance or nuisance to other Owners and Occupiers, then the Owners Corporation may serve a Notice on the Owner or Occupier of the Lot containing that Household Pet requiring that the Household Pet be permanently removed from the Strata Plan.
Any Owner or Occupier who has received a Notice from the Owners Corporation under 1.8 must comply with the requirements of that Notice within 14 days, and should compliance not occur within that timeframe, the Owners Corporation may pursue such compliance by an Owner or Occupier by all legally available means.EF – with the benefit if hindsight your Owners Corporation should have included conditions in its consent, that if comprehensive enough and properly registered as a “special by-law” (as ours are) ensures absolutely that only committed pet owners receive that consent, and that any indiscretions by their pets can be easily addressed.
There may be an “out”…. so how was consent sought, how was the “green light” decision made, how open-ended was it, and how was that communicated to the then prospective purchaser?
Thanks Jimmy, so in response to the questions raised in the first post:
1) Does she need a DA? Initial questions to council appear to indicate yes.
Most Council’s require a DA for renovations involving structural changes, and that Application would need to be stamped with the common seal of the Owners Corporation (O/C) so that Council is aware that the necessary consents have been given (read on).
2) Do we need a GM to approve this or can the EC approve? If EC can approve are there communication requirements to adjoining owners? What is the threshold at which a GM is needed.
Unless an applicable Special By-Law has been registered against the Plan’s (Strata) Title, then any renovation that involves the common property can only be considered by the O/C at a General Meeting by way of a special resolution, where ≥75% of those voting (including by proxy) must do so in favour in accordance with the unit entitlement of their Lots for the matter to receive consent (i.e. a “poll vote”).
Otherwise, consent may be given by the Executive Committee inclusive of conditions such as those applicable to hours of work (noise), notifications to neighbours, the use of properly licensed and insured contractors (the details of whom should be provided by the proponent together with the overall scope of work), the handling of building residues, contractors’ parking, and the movement of materials across the common property.
3) Is a by-law needed? If not, do we have adequate protection under the strata laws to hold the owner to rectification of any damage or unforeseen consequences of the works.
If necessary (refer above) a Special By-Law including conditions such as those mentioned above and the “protections” that you mention, together with one making the proponent and subsequent owners of the Lot concerned (and not the O/C) responsible for the on-going maintenance and repair of all common areas affected by the renovations would need to be prepared at the proponent’s cost and in advance of the General Meeting. If passed, then in order to be legally enforceable the Special By-Law would need to be properly Registered on the Plan’s (Strata) Title by NSW Land & Property Information.
Side question – can GMs be conducted via Skype conference calls?
The NSW Strata Schemes Management Act and the Regulation are both silent on the subject of “electronic meetings”, but in this case where there will be Plans, and possibly a DA and the draft of a Special By-Law to consider, together with the complication of a “poll vote” (as opposed one determined by a simple majority), I wouldn’t recommend that approach, particularly as a General Meeting convened to consider renovations and associated matters is paid for by the proponent.
Finally, and as the applicable consent process depends upon whether or not the proponent’s renovations involve common property, your O/C or its Strata Manager needs to definitively determine that from the baseline that all perimeter walls (i.e. external and adjoining other Lots), together with the ceiling and the floor of the Lot come under that classification. A word of advice — don’t fall for taking short-cuts or for permitting renovations to occur on the basis of a wink and a nod!
Sect 108 doesn’t require that the Owners Corporation (O/C) supplies records as your friend’s letter requires, but rather only that the O/C makes these available for inspection by your friend or by somebody else (such as under a strata inspection) with your friends prior written authorisation, and only then after the pre-payment of the prescribed fee ($31 for the first hour) to the O/C.
I know that sounds like a whole lot of bureaucracy, but I’m afraid that when dealing with one such as the NSW Civil and Administrative Tribunal (NCAT), what amounts to a slightly miss-worded request and some contrived confusion about about payment can derail the entire process.
So ask your friend to send a short letter of clarification to the Secretary of the Executive Committee pointing out that they wish to inspect the records of the O/C and specifically the items listed in the original letter, that they will bring with them a cheque in the amount of the prescribed payment to the O/C, and that given their previous correspondence, if a date/time for the inspection is not notified within say 7 days of the date of the letter, then a Application for Orders requiring the requested documents to be made available will be imediately sought under Sect 156 of the NSW Strata Schemes Management Act (1996).
Given what you’ve previously advised regarding the (non) management of your friend’s Plan, I’d suggest they concurrently make an Application for Mediation of what amounts to a dispute, at this stage over the non-provision of documents and records of the O/C.
A later stage may well involve a further Application for the compulsory appointment of Strata Manager (not as you again mention a “managing agent”) that by the way does not require prior Mediation, but albeit necessary that’s a big step to initiate because as you’ll read HERE, a Strata Manager that’s appointed by a NCAT Adjudicator is charged (and charge$ the O/C) to act absolutely in accordance with the terms of that appointment, which in some respects may not be in the broader interests of the individual members of the O/C (i.e. your friend and the other Owners).
It depends upon what State / Territory you’re in, so can you please advise lest I and others waste time on irrelevant replies?
supersleuth – having what removed; the record of the e-mails or the person who sent them?
If the latter, then as the members of the Executive Committee (E/C) are nominated, seconded, and voted for at each Annual General Meeting, then the simplest solution is for you to obtain sufficient support from like-minded owners so as not to again elect the author of those offensive text messages and e-mails.
Of course if there’s been no E/C Meeting where a decision was made and minuted to authorise the Secretary to issue those text messages / e-mails, then those have no authority in any case, and you could pursue that line of response.
Whatever the circumstance, it’s probably better to simply suck-it-up, to ignore the texts / e-mails, and don’t give the Secretary the attention that they obviously seek.
Try contacting the South Bunbury Office of Tenants WA (your local tenants’ advocacy service) HERE
….. in an ideal world the “rules” applicable to Strata living would be consistent across the Nation, but regrettably parochialism reigns, and whilst I can’t speak for PeterC, it would have spared me a whole lot of time/effort if, at the time of registration, you had completed the field that provided us with details of your home State/Territory!!
Perhaps post again to the Victorian forum, and please avoid again “quoting” the entirety of responders’ posts (that I’ve deleted from your last).
If you’re in NSW, the Strata Schemes Management Act (SSMA) prescribes that Annual General Meetings (AGM) must be held each year (obviously) on a date that’s no more than one (1) month either side of the Scheme’s original / first such meeting; so there’s no “15 month mark” – it must be between 11 and 13 months relative to the original such Meeting.
The amount of Owners’ contributions (levies) must be set in accordance with the terms of a compulsory Motion placed on the AGM Agenda, and under the SSMA be invoiced as “regular periodic installments” in accordance with those Owners’ vote on the Motion; so whilst it’s possible for Owners to vote for five (5) periodic installments per year (i.e. one regularly each 73 days) that’s atypical, but in any case the invoice should state the period for which the payment applies.
Although the terms of the Strata Management Agency Agreement that your Owners Corporation is required to have with its Strata Manager may well, such as for reasons of convenience, delegate the functions of Chairperson, Secretary, and Treasurer to that individual, the SCMA prescribes that the O/C at all times remains the “principal manager”, and that the elected office holders (above) may at any time rescind their delegations, even for a short time or for a particular purpose.
Your situation sounds to me like one of those where an Owners Corporation (i.e. all Owners) has allowed its Strata Manager to effectively take-over, and in my opinion it’s time for your elected Executive Committee Secretary to exercise their authority by either instructing the Strata Manager to immediately convene an AGM or to themselves do that without delay, and for you and like-minded Owners to concurrently prepare and submit to the Secretary (cc Strata Manager) whatever Motions you require to be voted upon (i.e. in addition to those that are compulsory).
Such a Motion could include one for the Strata Manager to, in addition to their compulsory provision of information on your O/C’s finances (e.g. income and expenditure), provide information on each Owner’s payments relative to their required contributions.
I’d suggest that you make the contributions payment no later than 30 days from its due date and in any event before the AGM because if you’re deemed un-financial then you cannot vote, and in the interim have a read through THIS publication issued by the NSW Department of Fair Trading, and Schedule 2 of the SSMA, and then get moving!
By all means post again if there’s anything I’ve missed or if other related issues arise.