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nyonyakay – the By-Law that you cite has been around in various iterations of the Legislation governing the operations and management of NSW strata schemes since 1973, and in fact it’s quoted at Model By-Law #6 in Schedule 2 of the current NSW Strata Schemes Management Regulation (2010).
What all that means is that as the By-Law relating to the “behaviour of owners and occupiers” has been embodied in relevant Legislation since 1973, then provided your scheme’s Title was itself Registered at any time after that year, then that By-Law automatically applies!
So provided your Executive Committee (E/C) reasonably believes that an occupier, whether an owner or a tenant, has contravened By-Law #6 then it can instruct the Strata Manager to issue that person with a Notice to Comply using THIS proforma, and if there’s a further breach by that person within 12 months then the E/C can on behalf of the Owners Corporation (O/C) apply to the NSW Civil and Administrative Tribunal for an enforceable Penalty of $550 to be issued to them.
In the unlikely circumstance that the Strata Manager has not been delegated to issue Notices to Comply on behalf of the O/C, then the E/C needs to formally meet to in order to resolve to do that, to minute its decision, and thereafter to provide those minutes and a written instruction to the Strata Manager accordingly.
I hope that clarifies the correct procedures in NSW.
Merrick & Peter – YES there is a mechanism in NSW whereby a minimum 25% of Owners, as determined from their collective unit entitlement (UOE) and the aggregate UOE of the Plan, can “requisition” the Secretary to convene an Extraordinary General Meeting (EGM).
So Merrick, if those who’ve been discussing the matter comprise at least nine (9) Owners, then depending upon the sum UOE of their Lots and the importance of the missed Motion, the following section of the NSW Strata Schemes Management Act (1996) would be another means to have that Motion decided:
Schedule 2 Cl.31(3) The secretary of an executive committee or, in the secretary’s absence, any member of the executive committee must convene an extraordinary general meeting as soon as practicable after receiving a requisition for such a meeting signed by one or more persons entitled to vote in respect of one or more lots, the unit entitlement or the sum of the unit entitlements of which is at least one-quarter of the aggregate unit entitlements.
Just a thought…. if you can get your Motion to the Secretary tomorrow (Mon), they may be suitably motivated to get that out as an additional item on the Agenda if you mention that you and other Owners will otherwise requisition and EGM just for that purpose!
Merrick – if you actually prepared and submitted a Motion for the Agenda as opposed to just flagging that intention, then even though the time frame is tight the Secretary has the ability to provide that to everyone on the Strata Roll as an additional Motion provided each receives it a minimum seven (7) days in advance of the Meeting (i.e. by this Wednesday).
However if you only “made it known” then your Secretary (possibly the Strata Manager if that role’s been delegated to them) could use that as a plausible excuse for not including your desired Motion in the Agenda.
It’s difficult, but your best option is to try to initiate discussions on your proposed Motion in the context of discussions on one that’s closely related to it, or depending upon the delegation required try to have it included on the Agenda for an Executive Committee Meeting.
Scott – you have the same rights as every other resident, but as an Owner you have the additional ability to do some research on how best to improve the reliability of the communal hotwater system, and to put a Motion on the Agenda of the next General Meeting of your Owners Corporation (O/C) to seek to implement that.
Realistically though, the current weather event is extreme and electricians are probably working their collective butts off in attending to related issues.
With regard the possibility of you opting-out of the communal hotwater system, its operating costs are probably embedded within the Administrative Fund Budget, and removing you from that would not be easy, and so your O/C would probably be reluctant to even attempt that.
Similarly, your installation of a gas-fired externally mounted system to supply hotwater to your Lot only would require a special resolution in that regard to be put to a General Meeting, where ≥75% of those then voting (incl. by proxy) would need to do so in favour in order for your proposal to fly, and unless other Owners have similar proposals you alone would be additionally required to fund the drafting and Registration of a special by-law (SBL) setting out the nature of the consent and any conditions imposed by the O/C to your installation, such as making you responsible for your system’s on-going maintenance and repair.
Have you considered an instantaneous electric system installed wholly within your Unit, just to supply hotwater to a shower during periods when the communal system is out-of-service? They’re < $200 and no O/C consent or SBL would then be necessary.
pend1lis – you were given good advice on the last occasion that you sought that with regard to this problem, and irrespective of whether you and other Owners want to spend money on legal advice or not, that in my opinion is the only way for your Owners Corporation (O/C) to undo the mess that it’s allowed to be created.
I made that observation in the first place (in response to your other post) because even if the so called “reasonable” compensation issue could be resolved through mediation, which I assume has been attempted (?), and even if your O/C could resolve to amend that Special By-Law to remove the ambiguities and those subjective, open-ended provisions, there is a bucket load of related matters in addition to those that you’ve raised here and in your other posts that a strata-savvy lawyer would detect and which your O/C needs assistance to resolve in a structured way.
Not the answer you want to hear I’m sure, but I’m telling it as I see it!
taps – as you’ve been continually referring to the plumber’s repairs in the past tense I assumed until now that everything, including that minor extension into the Owner’s Lot, had been left as it originally was at the completion of those.
That’s what your Owners Corporation (O/C) should have done for a marginally additional cost, and what it should do now for more than that!
This is much ado about nothing in my opinion, and so it seems to me that there’s some bad feelings between that Lot Owner and the Strata Manager and/or the Executive Committee.
So whilst I suggest that they simply suck-it-up, if there’s more to all of this than it appears, then your O/C could attempt to have the Lot Owner agree in writing to accept responsibility for the minor extension of the common supply into their Lot, and if they refuse, then jump-the-gun on their threat of legal action by taking them to mediation in the hope that facilitated discussions will achieve that outcome.
Jean – the role of your Building Manager would fall within the envelope covered by those of a “Caretaker”, where all such appointments under the terms of an Agreement (Contract) are covered by the provisions of Sect. 40B of the NSW Strata Schemes Management Act (the Act).
Whilst the Act doesn’t speak specifically to Agreement renewals, it’s a reasonable assumption that as the execution, transfer, and termination of those must be decided by way of a simple majority vote at a General Meeting of the Owners Corporation, so must a renewal.
So in answer to your question, my response is NO, as whilst the Building Manager’s Contract can be reviewed by your Executive Committee as a whole (i.e. with all Members), the decision to renew that or otherwise and in what terms must be made by all Owners present at a General Meeting.
Winston – clearly your Executive Committee’s actions are contrary to Schedule 3 of the NSW Strata Schemes Management Act (the Act), and particularly with regard to the entirety of Part 2, so if you can’t bring them to heel at the next General Meeting with the assistance of like-minded Owners, then you alone have the option to have the matter mediated and if necessary adjudicated under Sect 138 (i.e. not holding meeting in accordance with the Act).
As a less-favoured alternative, if you and any like-minded Owners feel strongly about the actions of your Executive Committee member/s, then you could yourselves initiate legal action against any of those as individuals.
I’m neither a legal nor insurance expert, but to the best of my knowledge your Owners Corporation would not be able to pay (using owner’s funds) for any action initiated in that way, and whilst its Office Bearers Liability Policy would cover members’ legal costs and settle any claim negotiated by the Insurer up to the maximum amount specified in the Policy, the latter would not apply if any dishonest, fraudulent, criminal, or malicious act or omission of the member/s (including those involving self-interest) was proven. Perhaps you should make your Members aware of that!
KWP – sweeping statements may be your forte on this Forum (
) but I acknowledge that mine is being the arch-conservative.So when I read Sect 65A of the NSW Strata Schemes Management Act (the Act) in the context of strata-savvy / bush-lawyer Owners and the often inconsistent rulings made by the NSW Civil & Administrative Tribunal (NCAT), then I read the provision that, in the absence of a Special By-Law stating differently, makes the Owners Corporation (O/C) responsible for the maintenance and repair of anything that’s been added to or erected on its Common Property by an Owner, as ipso-facto meaning that any such items are indeed part of that Common Property.
I agree that there are “degrees” of such changes and additions to the Common Property by Owners and that there may be an implied difference between those made on the external surface of a common wall and those made on the inside surface (i.e. within the air-space) of a Lot, but none of that’s stated in the Act and I’d sooner not leave decisions on such potentially contentious and expensive matters to interpretation by a third-party!
So whilst our Executive Committee doesn’t insist on Special By-Laws subsequent to Owners requests for our O/C’s consent to occasional renovations within Lots such as those to kitchens and bathrooms, we do cover its collective backside by including a clause stating that Owners’ acceptance of any consent and their undertaking of their renovations constitutes an understanding and acceptance by them of the requirement that they and subsequent Owners of the Lot are without limitation responsible for the on-going maintenance and repair of whatever it is that they’ve added to or erected on the Common Property.
What do they say about a stitch in time?
wildbear – having been on the receiving end of disparate rulings in the former Consumer Trader & Tenancy Tribunal in circumstances where our matters (2) were substantially the same, I’ve concluded that case law didn’t count for much in that Forum and I doubt that its metamorphisis to the NCAT as changed that too much; different horse with the same jockeys!
Suffice to say though that with regard to any additions and alterations to and the erecting of new structures on the Common Property, where Sect 65A(3) states that ….
“if a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, (then) the owners corporation has the responsibility for the ongoing maintenance”
….and your Plan’s Lawyer-written Special By-Law does include such a specification, then I think that supports my conclusion; albeit necessarily conservative in the context that I’ve outlined.
YES that’s correct, as even though the forward budgets are customarily included with the Notice of Meeting, they are “proposed”, and so Sect 75 prescribes that those amounts be estimated and agreed upon by those present at the Meeting using anticipated and planned expenditures, some of which may have to be voted upon at the Meeting, and the financials (income and expenditure) for the preceding period.
Winston – the Strata Manager is correct in my opinion, as your Owners Corporation’s (O/C) approach should have been to seek an Interim Order to halt the Owner’s un-consented renovations as soon as it became aware of those.
So now your O/C has to play catch-up, and in my opinion the best way for it to do that would be for it to immediately write to the Owner and advise them that the works that they’ve undertaken (describe them specifically) place them in breach of Sects 65(A) and 116 of the NSW Strata Schemes Management Act (1996), and that it is their duty (use that word) to within 7 days either commence whatever repairs are necessary including but not limited to (list those) in order to return the common property to its original state or seek in writing the Owners Corporation’s consent to the entirety of their renovations, which it will retrospectively consider.
In that way, if the Owners seek written consent your O/C could at a General Meeting, as a demonstration of good faith, retrospectively consent to the Owner’s renovations with conditions, one of which would be that they, at their cost, repair all areas of the common property (as listed).
Conversely, if the Owners don’t within the timeframe allowed seek consent, and they don’t commence the listed repairs that are their duty despite the O/C’s offer in good faith, then that would in my opinion open the door for the O/C to invoke the provisions of Sect 63(4) as the only clause of that Section that’s relevant to your O/C’s situation.
The better as opposed to the best option (i.e. the Orders) would be to encourage the Owners to seek consent under Sect 65(A), as in that way the O/C wouldn’t have to seek access to the Owner’s Lot and/or chase them for the recovery of its costs in the NSW Civil and Administrative Tribunal, where it could still end up after Mediation anyway; which is why it’s been acting in such “good faith”.
Of course your O/C could seek resolution via Mediation with the assistance of the NSW Department of Fair Trading straight away, but again in my opinion a letter and a delay of around 7 days for a reaction is not too long for it to seek-out a better and quicker solution.
YES – all items shown at Schedule 2, Clause 34 of the NSW Strata Schemes Management Act (1996) have to be included with the Notice of General Meeting which all Owners must be provided with at least 7 days in advance of that Meeting.
Final comments are to reiterate that your proposed gas pipe will form part of the common property, and whilst it will not encroach on another person’s Lot it would be somewhat difficult to maintain without trespass in the absence of a sky-hook, so I’d suggest some degree of caution about you relying entirely on a consent regarding access to that Lot from the current Owner that would not apply to any less-friendly future Owner of that Lot.
You’d do better to rely upon the means discussed in the 7th para of my last post.
taps – the information provided by the Department of Fair Trading is by necessity generalist, however there are some specific factors at your Plan that come into play.
The most significant one of those is that even though the Owners Corporation (O/C) was at some stage aware that a previous Owner had altered and/or added to the common water supply, it not only did nothing about that such as by at that time making that Owner and subsequent ones of that Lot responsible for the on-going maintenance and repair of those illegal works, its now undertaken the replacement of that entire section of the common water supply and now seeks a reimbursement of its costs to do that from the current Lot Owner.
Those unchallenged works by the original Owner means that the section of the common water supply that they altered and/or added to has itself become part of the common property, despite the fact that the garden tap is within the cubic air space of the Lot involved.
Your O/C could seek a reimbursement from the current Lot Owner for its costs to replace the garden tap ($20), but then you mentioned that it wasn’t faulty. So I’d suggest that your O/C just treats the $100s spent on plumbing repairs as the costs of a lesson cheaply learnt; that being to ensure that any works by Lot Owners that result in a change to the common property are consented to in advance in accordance with Sect 65A of the NSW Strata Schemes Management Act (1996) and that for minor works, it at least obtains a written undertaking from the Lot Owner accepting responsibility for the on-going maintenance and repair of whatever it is that comprises their works.
Just be thankful that the change to the common property in this instance comprised a minor addition to a common water supply and not an attached awing or a split-system aircon. fitted to common wall, because in the same circumstances and in the absence of proper consent with the original Owner (who seeks to undertake the works) the O/C would be responsible for those also.
0910 PS – just read KWP’s post, and yes it’s another point-of-view, but note that I’ve differentiated (above) between the previous Lot Owner who presumably undertook the illegal works and the current Lot Owner who’s now benefiting from those, because the O/C would be hard-pressed in my opinion to justify legally, morally, or financially, the removal of a minor extension to a common water supply that it knew about, which its just reinstated, and which the current beneficiary didn’t install. As I said, a lesson cheaply learnt.
wildbear – I assume you’re saying that because the proposed pipe is attached to the external surface of a Lot’s external (common) wall, then it’s in the air space of that Lot (?).
If that interpretation is correct, then it’s wrong!
The fact is that once a pipe or indeed any item is attached to the common property (wall) such that the property would be in some way left damaged should that item be removed (in this instance by masonry fixings), then that item becomes part of that common property.
Whilst I don’t know how your Plan’s Special By-Law is written, it should for that very reason contain a provision that shifts the responsibility for the ongoing maintenance of repair of gas pipes so fitted from the Owners Corporation (O/C) to you and any subsequent Owners of your Lot.
Again, I assume that the O/C) is talking about an easement because the area directly below the common property (wall) is part of the Lot (?), and so any maintenance that may be necessary on the gas pipe would require that Lot Owner’s permission for access and to possibly position a ladder.
If that interpretation is correct, then the O/C is also wrong!
IF the Owner of the Lot ever became obstructionist you could apply for a Utility Access Order under the provisions of the Access to Neighbouring Land Act (2000), or alternatively, at a stretch the O/C could itself gain access to have such maintenance or repairs undertaken under the provisions of Sect.65 of the Strata Schemes Management Act (1996) provided it then invoiced the costs to you.
I hope this assists in some way with the lucky-dip that pretends to be Mediation.