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On the assumption that the person you’re referring to is not just a cooperative a Member of the Executive Committee, and that they act as a letting agent for the Plan and/or maintain the Common Property and/or supervise tradespeople who’ve been sent to the Property by the Strata Manager or by the Executive Committee, then they are indeed classified as a Building Manager or Caretaker who must be appointed by a Motion passed at a General Meeting (simply majority vote) under the specific terms of a formal written Agreement with the Owners Corporation.
The transfer of an Agreement, even in identical terms, to another person or company must also be by way of a Motion passed by way of a simple majority vote at a General Meeting of the Owners Corporation, as must the termination of an Agreement, but only in strict accordance the terms provided in it.
So NO, the appointment of your new Building Manager or Caretaker by the means that you describe was not handled correctly and any Agreement would be therefore void!
KERA – looks like Jimmy hasn’t as yet seen your post, so as it’s moving down the list, I’ll respond.
I assume you mean a heat-pump type hotwater heater, in which case your Owners Corporation would be well advised to formally consider any proposal to have such an item on its Common Property, and so that’s what I’ll advise.
The proposal can be formally considered in two (2) ways, and in my opinion the easiest way for a once-off, assuming you’re in NSW, is under Sect 65B of the Strata Schemes Management Act where your Owners Corporation may, only at a General Meeting, consent to the granting of a formal Licence to the Lot Owner covering their use of a specific part (i.e. size and location) of the Common Property for the purposes of installing a heat-pump hotwater heater.
The granting of a Licence requires a vote in favour by a minimum 75% of Owners present at the General Meeting, including proxies, in accordance with the unit entitlement of their Lots (i.e. a special resolution), and be subject to Conditions which in this instance should at least include maximum noise levels (some heat-pumps are noisier than an aircon.), the securing of the unit, how conduits (electrical and water) should be fixed to the wall, and the insulation of the hotwater supply pipe to avoid burning.
If your Owners Corporation anticipates further requests of this type, whether those are for heat-pumps or any other type of hotwater heater, then it should instead consider the above as a generic Special By-Law (SBL), where only the initial proposal is considered at a General Meeting and subsequent proposals may be decided by the Executive Committee alone, but only under the provisions of the SBL thereby avoiding precedents and inconsistencies.
When you on the last occasion sought some advice concerning how to handle your upstairs neighbour’s renovations I posted that:
…those Owners will need to put that to a General Meeting together with whatever else they’re proposing by way of renovations to their Lot, and including details of precisely what’s proposed (i.e. plans & specs.), who’s doing the work (i.e. names / license & insurance details), and an written undertaking by them to be responsible for the ongoing maintenance, repairs, and replacement of all works comprising their proposal (see last para.).
You can add the specification of the acoustic underlay to the above, but your O/C will first need to know what impact noise level it’s prepared to accept as a “pass”.
…and in that “last para.” I also advised you that your Owners Corporation should seek some legal advice, particularly with regard to the preparation of a Special By-Law to amongst other things ensure that Owner/s of the renovated Lot properly maintain, repair, and replace those renovated areas; unless of course your O/C wants to forever be held responsible for that!
I don’t know why you’re having a General Meeting to “discuss” your neighbour’s proposal, because if that’s the nature of that Item on the Agenda, then discuss is all that you can do and an Executive Committee Meeting could have handled that!
Frankly I don’t think that your small self-managed Plan has enough information with which to consent or otherwise to the renovator’s proposal; so if in doubt don’t and instead seek some professional assistance! Experienced Strata Lawyers handle proposals such as yours on a regular basis.
Firstly, the Strata Manager (or somebody from their Office) would only come out to your building when repairs etc are being undertaken if the Agreement / Contract that your Owners Corporation (O/C) has with them requires that attendance, and YES, they’d most certainly charge you to do that at the agreed hourly rate.
But why would your O/C want them to do that, when most contractors should be quite capable of cleaning or doing whatever is required without the Strata Manager or anybody else looking over their shoulder?
A Strata Manager and a Caretaker have completely different roles, and it’s when they “oversee” each other that duplication of their activities invariably arises, and when an O/C’s costs consequently increase.
Secondly, if your O/C wants to terminate the Agreement / Contract that it has with its Strata Manager, then that needs to be in accordance with whatever is in that Agreement / Contract where a minimum of three (3) months written notice is usually required, and be decided by a majority vote of Owners at a General Meeting; the Executive Committee cannot make that decision.
With regard to a Strata Manager handing-over the O/C’s records to a replacement, that’s what the three (3) months notice is for, but more critically, the O/C needs to have a firm proposal (incl, costs) from the replacement Strata Manager so that Owners can vote to appoint them at the same General Meeting.
Finally, if your E/C is of the opinion that its current Strata Manager has behaved fraudulently, then you need to discuss that with whoever it is that administers their License, in NSW that’s the Department of Fair Trading, but as your O/C has a legally binding Agreement / Contract with that Strata Manager it CANNOT just decide not to pay for their Services; best to seek some legal advice on that contractual issue.
Personally I don’t favour the use of Caretakers, but perhaps my biggest objection would be avoided if the duties of the Caretaker and the Strata Manager didn’t have so much potential to overlap.
So in general terms your situation could overcome that problem at least, but have a look HERE for how the NSW Legislation requires the appointment to be made.
Scott13 said…. It appears the ‘Committee’ are considering that owners may apply to have a ‘Sub-meter and powerpoint’ connected from the Common Area powerpoint. ..How expensive that’ll be I have no idea.
I often wonder how things turn out with regard to issues discussed here, so thanks for the feedback Scott.
One of our extended family has recently constructed a secondary dwelling (granny flat) on their property, so I just contacted them to find out about how they’ve metered the water and electricity.
Water usage is irrelevant in your situation, but their electrician supplied and installed a single phase sub-meter on the electricity supply that feeds the new dwelling for $105.00.
I’m not an electrician, but apparently the device incorporates a “fusible link”, and is therefore installed wherever that item (?) would normally be located on the primary electrical supply board.
Hopefully that answers your question about the likely costs of your E/C doing that; thanks again for the feedback.
Manny – In so far as a decision of an Executive Committee (E/C) is taken to be one of the Owners Corporation (O/C) its decisions do have consequences, however in your example the E/C is not itself making the decision to remove the lift’s key-operated security but is rather putting that to the vote at an Extraordinary General Meeting (EGM) where all Owners will decide one way or the other.
In normal circumstances I’d be inclined to let such a small change to the Common Property be put (on the Agenda) and be decided at the EGM by a simply majority vote, but due to the impacts that removal of the lift security would have, if you’re in NSW I recommend that you advise your E/C Secretary that under the provisions of Sect 65(A) of the Strata Schemes Management Act the Motion should be put as a Special Resolution.
The impacts of that are that in order for the Motion to then pass a minimum 75% of those Owners in attendance at the Meeting both personally and by proxy, as determined from the units of entitlement of the Lots, would need to vote in favour.
Clearly a collective decision in favour in accordance with the above would not give you or any other Owner grounds to seek compensation, but as with all democratic processes lobbying is permitted, so start getting any like-minded Owners on-side and to either attend the EGM or to give you their proxies; you only need a minimum 25% vote against and to thereby defeat the Motion.
In NSW the sale of Common Property requires a unanimous resolution (100% in favour) by all Owners in attendance at a General Meeting, both in person and by proxy and including any that may be un-financial from a Strata perspective at the time of the vote.
A few additional points that may assist in your circumstances:
1) All Owners must be provided with the Meeting Agenda including all Motions under consideration and relevant supporting information at least 14 days in advance.
2) Any proxies held by the Strata Manager, Village Operator, or the Proponent cannot be exercised if any of them would receive a “material benefit” from the use of those votes.
3) I’m almost certain that under the provisions of the NSW Retirement Villages Act the Proponent is at their cost required to provide any Owner who requests it with access to independent legal advice in order to ensure that they’re fully aware of the Motion and of its implications (if any).
Your Owners Corporation’s Special By-Law has clearly been written around a precautionary approach, that given the problems that so many have experienced after accepting low noise-transmission assurances from self-titled “engineers” as the basis of then consenting to a variety of hard flooring materials, is entirely justified in my opinion.
That Special By-Law obviously enables the Executive Committee to impose the Conditions that you’ve quoted, but IF you’re saying that they’re going to arbitrarily insist on a Report that those Conditions state may be “requested”, then I’d suggest that they’d need some firm justification in order to enforce that.
Our Plan’s Special By-Law (SBL) requires a similarly based Report, but only in circumstances where the Owners Corporation’s Consent to a hard floor has been given on the basis of the best acoustic information available, and then verified complaints of impact-related noise arise from adjacent Lots and the E/C reasonably determines that’s likely to be a Breach (of the SBL); but not arbitrarily “within one month of completion of the works” as yours does!
I don’t often say this (if ever) but if what you’re saying is correct, then after making damn sure that your Lot’s acoustic underlay is adequate, and I’d suggest extended vertically up the margins of the walls (i.e. to the top/surface of the flooring), I’d be going ahead with the works and letting the E/C objectively justify its “request” for a Report – which in the absence of verified complaints by the neighbours I’d simply ignore.
Sure, your O/C can take you to Mediation but in the absence of evidence to support its justification for requiring a Report I can’t see that going to Arbitration or to the point where Orders or Penalties are awarded against you.
Johnno – you’ve hit the proverbial nail on the head, in that what’s been done consequent to rectification works is an alteration or addition to the Common Property, that in NSW should have been pre-approved by a minimum 75% majority vote as determined from the unit entitlements of those present at a General Meeting of the Owners Corporation; so that’s what you’re looking for.
The Owners of the three (3) top-floor Lots now have exclusive use of part of the Common Property, and contrary to the advice that you’ve received, that has likely added to the value of those Lots and may have diminished the value of yours due to the privacy issue that you mention.
Again, the exclusive use matter should have been incorporated with the Motion to consider the alteration / addition to the Common Property, together with an enabling Special By-Law to amongst other things require the three (3) benefiting Owners to make regular payments to the Owners Corporation that reflect the “value” of that use, which would in normal circumstances be reflected by their Levy Contributions.
Before discussing what can or should be done about all this, may I suggest that you come back after you’ve found out how it is that the works were approved and funded, because advice in that regard will depend upon how that process was handled.
Special By-Laws can be retrospectively applied to the extent that they apply equally to all then existing and future residents of a Strata Plan, but not to the extent that they deleteriously affect any prior decision of an Owners Corporation or of an Adjudicator with regard to individuals.
It seems that your Owners Corporation wants to rule a line under your installation in order to prevent anything similar in future, and whilst that’s its prerogative, if it suits you to get moving with your aircon. installation sooner rather than later, that may avoid further discussions / delays.
YES …. mediation is a mandatory precursor to you seeking Orders, and in NSW that can be initiated through a Community Justice Centre or the Department of Fair Trading.
NO… a person who is not an Owner must be nominated for election to the Executive Committee by a person who is an Owner.
Schedule 3 Clause 2(4) of the NSW Strata Schemes Management Act (1996) applies.
MNS – people in the real estate industry are known as innovators, and your Strata Manager might actually be adding some value to your Owners Corporation by having some type of fire safety inspection undertaken.
As I remove my tongue from my cheek, I can’t help wondering that in the absence of a Fire Safety Schedule (issued by Council) that applies relevant items from “today’s standards” to your specific property, what it is that the so-called fire safety compliance manager is assessing, and upon what basis they’re determining a pass, a fail, or recommending remedial actions ($) by their Contractors.
All of that said, in order to pay for the fire safety inspection and the remedial actions it identifies, your Owners Corporation (i.e. you and all of your fellow Owners) would need to have budgeted a sufficient amount for that purpose in the Administrative Fund, to have approved that amount at the last AGM, and to have authorised the resultant payments to the Contractors, so if anyone’s to blame for gold-plating (if that’s what it is) it’s not your Strata Manager.
Perhaps put some boundaries around the scope of future inspections if the majority still regards them as beneficial.
Neither would be.