Forum Replies Created
-
Replies
-
I agree with all of that Jimmy, and in my opinion the following observation by you is the most difficult for caring resident owners to address:
…..the hardest thing to do is to change the committee by being a pain in the backside over technical breaches that no one else cares about
In the area where we live in N/W Sydney, despite reported changes (read: restrictions) to funding for off-the-plan purchases and in particular by overseas buyers, strata buildings are being completed in record time, with the only signage that then prominently appears stating “now leasing”.
So how do the few resident owners in such buildings who do care and who do wish to change the composition of a Strata Committee from hell with a compliant Strata Manager convince a majority of absent/investor owners to support them?
With extreme difficulty if not impossibly in my opinion!
I initially thought that on-line voting may assist, but upon reflection I don’t place too much hope in that initiative of the new Legislation as uninterested owners will likely remain so.
Then I thought that the proposed limits to be imposed on “proxy farming” would curb the ability of the vocal minority at General Meetings to achieve the quorum that currently enables them to benefit from absent owners’ lack of interest in anything other than the return on their investment.
Under the current Strata Schemes Management Act (1996) the lack of that quorum at least provides a caring minority with a further opportunity to enlist support from other owners during the mandated seven (7) day adjournment period before a General Meeting may be reconvened.
Regrettably that window of opportunity has disappeared under the post November 2016 Legislation where, if due in part to the limits on the numbers of proxies that can be held by individuals a quorum is not achieved, then the Chair now has the option to either declare that those then present and entitled to vote both personally and by proxy do comprise a quorum on a motion by motion basis or to adjourn the Meeting for seven (7) days.
No prizes for what the Chair of a committee from hell would do!
Apologies for the negativity, but the way I see the future demographic of strata buildings, and the larger ones in particular, I’m not hopeful for a good (read: easy) life for caring, resident owners who will almost certainly be in the minority among investor/owners and a conga-line of their transient tenants.
Scallywag – while I have no doubt that the public availability of the upcoming NSW Legislation and supporting Regulation will bring purveyors of on-line voting systems both within Australia and elsewhere out of the woodwork, you really are a scallywag by initially promoting such a system without declaring your association with it.
But be that as it may, as your now un-named product is designed around QLD Legislation have you or any of your colleagues checked its compliance with the provisions of the NSW Regulation (2016); particularly with Cl.15 and how it manages votes that need to be tallied by a means other than one vote one value?
Once you’ve done that, perhaps approach Jimmy T about sponsorship of this forum or about some other means of advertising ahead of the inevitable rush.
mailbox said.… At our recent EGM to elect a new committee, as no proxies were allowed, Powers of Attorney were provided by several people. So the smarties are one step ahead.
I’m not a Lawyer, but I would expect that as Sch.1 Cl.26(1) of the proposed new Act states that persons acting as a proxy must be appointed by “an instrument in the form prescribed by the regulations “ and the Regulation (2016) states that “an instrument appointing a proxy is to be in or to the effect of (my emphasis) Form 1 in Schedule 1 “, that a Power of Attorney would have the same effect at a General Meeting as the Form prescribed and would therefore come under the same limitations as given in Cl.26(7); viz one (1) instrument for Schemes of instruments equal to 5% of the total number of Lots in the scheme.
So the smarties aren’t one step ahead in my opinion, although it never ceases to amaze me how hard some many Strata dwellers try to bastardize what should be a democratic process.
In response to Jimmy’s query (post #2) about anybody else using an electronic voting system, as some regulars would be aware from my previous posts, our self-managed scheme has been using a web-based package called simply voting for all Executive Committee and General Meeting since around 2013.
As the current NSW Act is “silent” on the subject of electronic voting I’ve always convened physical meetings, and for general meetings have when necessary followed the provisions of Sch.2 Cl.12 before taking into account any submitted on-line votes.
To be honest I found the very first set-up a little tedious but after that, and with the support of the developers who provide extremely helpful and timely advice, I’ve found simply voting to be a breeze if not a little inflexible in terms of pricing where up to 10 voters is free, and from there up to 250 voters is a flat $260AUD.
I haven’t at this stage checked simply voting’s compliance in detail with the post November 2016 provisions of the new NSW Act and of the Regulation, but that’s the responsibility of the purveyors of the product.
You can have a practice as a participant HERE and as a Secretary/Organiaser HERE.
Obviously I have no association of any kind with the proprietors, developers, or operators of the simply voting product or its backroom; I’m merely a satisfied user of 3 years.
No problem.
I’m pleased that the srategy had the desired effect, despite the fact that I miscalculated the penalty; it’s actually $2,200
.Winston said.…. It appears that the S/Manager is now not communicating with the EC (Secretary) and there is a concern that at the time of the meeting it will not have been provided.
I assume that “it” means the requested details on unpaid levy contributions and on the strata roll, in which case provided the request was made of the Strata Manager in accordance with Sect 37 of the NSW Strata Schemes Management Act there’s a maximum penalty of $5,500 for their non compliance.
That’s of lesser importance in my opinion than the Owners Corporation (O/C) making sure that it’s complied with the termination provisions of its current Agency Agreement with its Strata Manager, where the typical requirement in the absence of a mutual agreement between the parties is three (3) months written notice by the O/C prior to its current expiry date.
Another important factor is continuity, where in the circumstances you describe the current strata manager will likely, and contrary to best practice, not provide the Owners Corporation’s records to their replacement in a timely manner, in which case your preferred new Strata Manager must be made aware of that likelihood and encouraged to develop solutions to overcome it.
Regarding the propriety of the extraordinary general meeting (EGM), the secretary has properly exercised their duties provided they used the best available information on the strata roll to distribute the agenda papers for the EGM, and as a simple majority vote is all that’s required to terminate an Agency Agreement and to execute another, the fact that there may be a vote by some possibly un-financial owners is unlikely to be of consequence; albeit not ideal.
The best solution in addition to those that I’ve suggested would, on the assumption that the motion to terminate the existing and to appoint a new Strata Manager passes, be to to amend the motion at the meeting (that’s permitted) to the extent that the actual date of termination is say 60 days hence, thereby giving the incoming Strata Manager some time to arrange handover.
With reference to Sect 138 the NSW Strata Schemes Management Act, an owners corporation is required to “exercise, a function conferred or imposed by or under this Act or the by-laws in relation to a strata scheme”, and you have asked them to exercise just one of those functions by way of your agenda motion.
I’m beginning to this that there’s more in the mortar than just the pestle here, but if a majority of those present at the meeting (both personally and by proxy) decide not exercise the function requested in your motion, then your best recourse is under Sect 138(1) & (2a) where an Adjudicator may make an Order to settle the matter in such circumstances.
JS – I hope you read this before tonight’s AGM.
Sect 40A states that a caretaker or building manager is a person who is ENTITLED to exclusive possession of a lot or common property.
The fact that a person chooses not to avail themselves of that entitlement doesn’t alter that fact that if they perform any or all of duties prescribed, namely managing common property, controlling the use of common property by persons other than the owners and occupiers of lots, and maintaining and repairing common property…… then they’re caretakers, building managers, resident managers or known by any other title, where Sect 40A applies AND under Sect. 40B they can only be appointed by and/or have their Agreement terminated and/or transferred to another person by way of a resolution at a general meeting of he owners corporation.
You should advise the Chairperson of your general meeting that if the motion to extend the current, illegally determined “contract” of the person now undertaking the duties of caretaker, building manager, or whatever is put to the vote and passed, then you will be seeking orders in the NSW Civil & Administrative Tribunal to have that resolution invalidated under Sect 153 of the Act.
simone – despite your reference to an “ACT tribunal”, I’ll assume that you’re in NSW, and will advise as I have many times before, that a reliance on cooperation as an alternative to by-laws as the means to manage strata schemes’ affairs works well until just one person decides not to (cooperate).
That’s particularly critical when, as in your scheme’s situation, that failure to cooperate involves changes to the common property, to the appearance of the building, and leads to noise impacts upon neighbouring residents.
Your executive committee (E/C) has asked the owner concerned to relocate her air-conditioner, and as that’s been refused its best option in my opinion is to formally convene another meeting of members to vote on a motion to decide upon whether that owner is in breach of by-laws due to her causing damage to the common property (#5), altering the appearance of her lot (#17), and causing noise that interferes with the peaceful enjoyment of neighbours.
If the E/C’s reasonable belief is that any or all of those by-laws has been breached, then a vote should be taken to issue the owner with a Notice to comply for each of the by-laws that it believes have been breached (i.e. possibly 3 notices), and be prepared to substantiate that decision if the owner doesn’t comply and the matter proceeds to the NSW Civil & Administrative Tribunal (NCAT) over the issue of a penalty (for non-compliance).
Make sure that the E/C meeting is formally convened with an agenda comprising the suggested motions, and the it’s distributed in advance to all owners at least 72 hours in advance.
That’s the best option in my opinion given the circumstances, although your E/C could attempt mediation over the noise issues alone even though that’s a consequence of the breach, and therefore likely won’t address it as the prime issue.
The next priority is of course to place a motion on the agenda for the very next general meeting to create and register a special by-law covering owners’ installation of air-conditioners.
JS – yes it is a bit confusing, but if by a “paper vote” you’re referring to a ballot-style paper to elect members of the executive committee (E/C) then as for every other motion on the agenda for a strata general meeting, the outcome is determined by a majority vote (first past the post) and so YES it can in your example be cast for just one (1) person out of all seven (7) nominees listed for E/C vacancies on the ballot.
I don’t wish to confuse your situation any further, but I have to point out that the current Act is silent on the subject of so-called “paper votes” for strata meetings (i.e. for E/C and general meetings), and that’s been interpreted on this forum and elsewhere to mean that there must be a physical meeting at a location advised on the agenda, where those who wish to personally attend can do so and determine a quorum; only then can “paper votes” by absentees other than those submitted by a proxy in the approved form be accepted.
Hope this helps rather than further confuses your situation.
JS – the easiest answer is that Sch.3,Cl.2(2) of the NSW Strata Schemes Management Act states that “the executive committee is to consist of such number of members, being not more than 9, as the owners corporation may determine”.
So every eligible person at the General Meeting can if they wish nominate themselves or accept a nomination for membership by another eligible person, with that often (but not compulsorily) being seconded by another eligible person.
Those in attendance at the AGM and entitled to vote then do so for each nominee, usually by a show of hands, so if you don’t wish to support any nominee/s then you need to vote against their election; there’s no point just not raising your hand at all because then your vote “against” won’t be recorded.
If that means that there are less elected members than previously or less than the maximum permitted (9), then so be it!
As for the “9 volunteers”, the elected members may wish to co-opt the support of other eligible people, but those are not members of the Executive Committee and so cannot vote at committee meetings unless they’re doing so as the nominee for an elected member who cannot personally attend a specific meeting.
I’ve referred to “eligible persons” on a few occasions, and FYI that includes:
– an individual who is an owner of a lot,
– a company nominee of a corporation that is an owner, or
– an individual who is not an owner but who is nominated for election by an owner who is not themselves a candidate for election.
– a person who is co-owner of a lot who has been nominated for office by another co-owner of that lot, provided the other co-owner is not themselves a candidate for election as a member.
– an owner of a lot who is not a co-owner of the lot may nominate himself or herself for election as a member of the executive committee.
Hope that response was timely enough!!
At this point in time, any “disposal notice” would have no authority unless it was issued as I suggested (in post #2) as a Notice to comply with a relevant by-law, in which case it has to be issued by the owners corporation or its executive committee after the passing of a motion to do so at a properly convened meeting.
So…. NO, the notice that you left is not valid; it’s just a friendly note!
In conclusion, as I alluded to in my other post (#2), and even though I obviously haven’t seen the items that are currently on the common property of your building, your owners corporation would be in my opinion most unwise to in any way legitimise a continuance of that practice.
If it does perhaps because it regards the presence of the current items as innocuous, that would amount to it granting somebody a “licence” to use the common property, that to be properly decided at the AGM comes under under Sect 65B of the Act, where a special resolution (as opposed to one determined by a simple majority) is required, that to PASS requires no more that 25% of those voting to so so against the motion; or conversely by at least 75% voting in favour – with both percentages determined in accordance with the unit entitlement of their lots (i.e. a poll vote).
If as you expect, your strata manager is going to support permitting the occupant’s bike, table, and whatever else may follow to remain on the common property, then you might want to give him a heads-up that any valid decision by the Meeting will have to be on the the basis of a vote on an specific agenda motion, not under “general business”, and be listed there as a special resolution under Sect 65B of the Act.
Dudley – with regard to your question about the need to reappoint your strata managing agent upon the introduction of the new NSW strata laws in November, the Department of Fair Trading’s website states that if a strata managing agent is appointed before 30 November 2016, then the term of their appointment ends either 3 years from the date of that appointment, or 6 months after the introduction of the new strata laws whichever is the later date.
There may be a couple of reasons (at least) why your strata managing agent is proposing a new Strata Management Agency Agreement, the first being that under the current laws those Agreements merely roll-over for successive terms unless earlier terminated by one of the parties, whereas under the new laws the maximum permitted term is 3 years.
Secondly, the new laws require owners corporations to approve of any compulsorily declared commissions that are paid to their strata managing agent (e.g. from strata insurers), and the new form of Agreement that I’ve seen allows strata managing agents to increase their agreed service fee by an equivalent amount in those circumstances.
You can read more on the post November 2016 “strata managing agent reforms” HERE.
As you’re only a few days past what may be an arbitrary deadline, I suggest that you submit your motion anyway so that at the very least it’s on the record.
Proxies need to be submitted to the Secretary before the commencement of the Meeting, but that’s of little consequence as all items upon which decisions can be made at an AGM must be specifically included on the agenda.
“General business” is useful only as a means to enable informal discussions at the conclusion of the Meeting and no decisions involving the activities of the owners corporation in its management of the Scheme can be then made.
supersleuth asked……
….are they (i.e. the table and bike) allowed to be there?
answer: NO, as this breaches model by-laws 3 & 9 that state “an owner or occupier of a lot must not obstruct lawful use of common property by any person” (3) and “an owner or occupier of a lot must not deposit or throw on the common property any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using the common property” (9).
….secondly can they be removed?
answer: NO, not until the owner of the items is given the opportunity to do so.
….is it within his (i.e. a strata manager’s) jurisdiction to being ask the question?
answer: OF COURSE, but it sounds like the nominated liaison for the executive committee (possibly the secretary) has instructed the strata manager in the manner that you’ve described; that is to raise the matter at the next AGM
….does whoever put them there need some kind of approval?
answer: YES, and whilst the resident concerned could apply to the owners corporation for consent, would it wish to grant that for a purpose that amounts to this resident’s cost-free use of the common property? NO!
My suggestion is that rather than waiting for the matter to be raised at the AGM, possibly in an informal way, that as the meeting is to be convened shortly you write the following note / motion and send it to the Secretary of your executive committee with a copy to the strata manager:
“I have made the strata manager aware of materials comprising a bike and a table that has been deposited in the foyer to the stairwell I believe by the resident of unit * in contravention of by-laws. I am of the opinion that the depositing of these and similar items will proliferate if action is not taken by the owners corporation to enforce its by-laws, so I submit the following motion for inclusion on the agenda for the general meeting:
THAT the owner of the material placed on the common property at (describe the location), and which at the time of writing comprises a bike and a table causing nuisance and potentially a hazard to occupants, be required by the owners corporation to remove those materials from the common property, and in default that the executive committee or the strata manager if so delegated issues the resident concerned with a Notice (to comply with by-laws 3 & 9) under the provisions of Sect 45 of the NSW Strata Schemes Management Act (1996) and that if necessary that compliance be enforced as prescribed in that Act.“
It sounds like your strata manager isn’t expecting a big roll-up to the general meeting and/or that those who do will follow his lead by perhaps doing nothing about the problem, so between now and the date of the meeting you may wish to approach like-minded owners to support your motion, either at the meeting or by giving you their proxy to vote on their behalf.