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Felix – I never cease to amazed by circumstances such as yours; like where was your Strata Manager when the E/C was making decisions that it doesn’t have the authority to make, and for that matter how were other Owners permitted to add air-conditioners to the Common Property without an enabling Special By-Law setting-out installation procedures and making them (and not the O/C) responsible for the on-going maintenance and repair of those?
So it’s that Special By-Law (SBL) which needs to be put in place, by the inclusion of a suitable Motion on the Agenda of the next General Meeting to Register that together with Conditions that mirror the installation methods that your O/C is satisfied with such as the concealment of the pipework within the wall cavity, and to also grant retrospective approval to those air-conditioners that have already been installed on the proviso that the Owners concerned agree in writing to themselves maintain those.
With regard to the most recent air-conditioner installation, try to ascertain if the scope-of-work that the E/C improperly approved was what was then undertaken by the Lot Owner.
If your O/C’s lucky and it’s not, say with regard to the visible pipework or in fact any other discrepancy, then your O/C needs to advise that Owner in writing that a proposal to create and Register a SBL covering the proper installation of air-conditioners will be on the Agenda of the next General Meeting, and if passed, they’ll be required to at their cost make their installation complaint.
If your O/C’s unlucky, then I’m afraid that the letter (above) would still need to be issued, with an amendment to the affect that should the SBL render their installation non-complaint, then the O/C will (at its cost) make all necessary alterations to achieve that compliance.
Maybe not the answer you’re after, but I’m afraid they’re the consequences of improperly managing a Strata Plan!
catg80 – sorry to be also pessimistic, but if you’re in NSW, the current requirement is that a vendor must annex to their Contract of Sale a print-out of the Title Search, a Sewerage Service Diagram, a Section 149 Certificate from Council, and a copy of the Strata Title Plan; that’s all.
It was your responsibility to commission a Building Inspection and a Strata Search, where in the latter case the Report that you refer to about the extent of the balcony problem and the Minutes of the subsequent Extraordinary General Meeting (EGM) would have been identified and brought to your attention pre. the exchange of Contracts so that you could have made an informed (and possibly different) decision on the purchase.
Jeff – as it would be unusual for “rot” in the concrete sub-floor to be limited to the trafficable areas of the kitchen, it sounds to me like the Owners Corporation (O/C) took a minimalist approach to the original rectification works.
The best approach in my opinion would be for you to obtain a quotation for the remediation of the previously un-repaired areas of the kitchen floor, and for your partner to include that with correspondence to the Secretary of her Executive Committee (E/C) seeking advice regarding any requirements that it may have with regard to her proposed renovations (the scope of which should be outlined), setting out the circumstances that you’ve described here, and requesting that they either arrange for the previously un-treated areas of the kitchen floor to be repaired in a timely fashion or to reimburse her costs of having that done as part of the overall renovation.
unitowner1 – the tiling work involved would be regarded as a change to the Common Property (floor) of the balcony, and as such and in the absence of an existing Special By-Law covering the conditions under which that type of work may be undertaken by Owners, consent cannot be granted by your Executive Committee (E/C) or unilaterally by its Chairman.
The correct procedure is for the Owners Corporation (O/C) to consider the past works by other Owner/s retrospectively and together with yours at a General Meeting, where a special resolution would needed to grant consent, and to set out the conditions applicable to future works such as but not limited to work times, noise, disposal of residues, waterproofing, and contractors’ licenses and liability insurance.
Then, and only if the O/C wishes with Owners’ consent to make them individually responsible for the on-going maintenance of their tiles, the wording of a Special By-Law (SBL) would need to be decided upon in the same way and be then properly Registered on the Title for the Strata Plan.
It’s entirely appropriate for that SBL to be drafted by the E/C and be then put to a General Meeting as you suggest, and in the circumstances it would be appropriate in my opinion for the O/C to cover the costs of that SBL as it would cover existing works and those which may be proposed in future, and enable those future consents to be granted by the E/C in accordance with its conditions (i.e. no General Meeting necessary).
Felix – the NSW Strata Schemes Management Act (SCMA) is silent on the conducting of Executive Committee Meetings electronically, but in any case a Notice of the Meeting and an Agenda should have been provided to all Owners at least 72 hours in advance, and if the work as now completed comprised any change, alteration, or addition to the Common Property then the Executive Committee (E/C) didn’t have the authority to grant consent to those, as under Sect 65A of the SCMA the consent of the Owners Corporation (O/C) is required by way of a special resolution at a General Meeting.
Even though in the situation that you describe the Meeting of your E/C was improperly convened and its decision also improper, that decision is still regarded as being one of the O/C (albeit also improper), and so could be invalidated by an Adjudicator of the NSW Civil and Administrative Tribunal (NCAT).
Problem is the work’s already completed, so any decision now taken to invalidate the E/C’s decision and to thereby require the Common Property to be returned to its original state would depend upon what’s been done; perhaps you could elaborate.
Felix said …..
Peter C:
As I pointed out in my submission, the work that contravened the by-law has already been carried out and finished!
Stevecro et al – I’m sorry but how is anything that you’ve posted different from what’s already been said? Maybe I’m just becoming older and crankier, but people here sometimes post replies just for the sake of doing so, without adding any value to the discussion and simply push the post containing the original query further down the page!
Maybe I shouldn’t jump on you as some of your posts have added real value, but to all here I say please don’t reply by going over old ground or by simply agreeing with someone else.
See the previous post (#2) re points to look out for, and try the sponsors of this forum – there’s a link at the top of the page and you’ll find two Strata Management businesses there providing somewhat different types of services.
Whatever you do it’s good to remember that it’s the responsibility of all Owners to manage their Plan via an Owners Corporation, and that a Strata Manager is just there to provide guidance and administrative support.
Thanks Stevecro, it’s interesting that an Act is needed in order to interpret other Acts, but it’s the NSW Strata Schemes Management Act that’s primarily applicable here, and as it sates that General Meeting agendas must be served on Owners et al “at least 7 days” before the Meeting, and as the interpretation of that is distribution at least 11 days before the Meeting to allow for snail-mail (should any Owner/s use that), then the Strata Manager was entirely compliant by distributing the papers on or around 7/8, and therefore necessarily prior to 11/8 when the additional Motions were received.
The Meeting should not have been “pulled”, and again, call me a conspiracist but I can’t help wondering what made those late Motions so important (or not).
newlsie – it’s too late now, but if the information that your Strata Manager provided about the timeframe within which she mailed or otherwise distributed the Agenda is accurate, then not only was there no requirement to “pull” the AGM, she should have discussed that with your Executive Committee Secretary before doing so.
Obviously the two clauses cited by your Strata Manager are correct as they’re from Schedule 2 of the NSW Strata Schemes Management Act (1996), but again, if the Agenda was distributed as she advised then the requirements of that Act were complied with.
Strata Managers too often forget that they’re service providers to their Owners Corporation (O/C), and despite any delegations granted to them in their Agency Agreement with the O/C as their Client, they must not act unilaterally.
I can’t help wondering about the nature of the late Motions, but in any event the issue could be in future avoided by the SM issuing a Preliminary Notice of Meeting, where the date and venue of the AGM is given and Motions called for, with a firm close-off date for responses in time for the Agenda to be finalised and distributed in compliance with the Act.
Alinka – one last word from me on this subject.
With regard to your Strata Manager’s fees, your Owners Corporation (O/C) is entitled to demand a break-down of the fee components in terms of the hourly-rates and/or prescribed amounts ($) for each as applicable, and to compare those to the amounts declared in advance by the Strata Manager at Schedule B of their Agency Agreement.
As for the provisions of Sect 138 (2) of the SCMA, if your O/C Secretary or the Strata Manager under delegation had, within 2 months and behaving reasonably, advised the Owners of a decision to consider their Motions at the upcoming AGM, and not by specially convening an EGM, then the provisions of Sect 138 would have been satisfied and those Owners wouldn’t have been able to seek Orders at the NCAT.
It’s only a do nothing / say nothing response by an O/C that gives rise to redress by affected Owners at the NCAT; and so it should!
That’s all from me!
Alinka – in response to your questions and in the context of the circumstances that you’ve outlined in your posts, the answers to each of those questions is YES, and it’s also worth noting that “Extraordinary General Meeting” is just the descriptor used to define any Meeting of an Owners Corporation that’s not an Annual General Meeting!
However, I’m afraid that it’s not always as straight forward as that; as I often say with the practical application of Strata Law, it depends.
For example, if an Owner proposed to undertake renovations to their townhouse, and they’d obtained quotations, selected a preferred contractor, checked their licensing and insurance details, agreed upon a preferred start date with them, and then after approaching Council they were informed that it required letter from their Owners Corporation (O/C) stating its prior consent to the works in accordance with the SCMA.
Assume that Owner then directly approached their Executive Committee Secretary to convene and EGM (which the Secretary can themselves do) in order to consider a Motion to consent to their proposed renovations, or even if they even went as far as providing a requisition for a EGM supported by 25% of all Owners, then in such circumstances, whilst after discussions with other Members the Secretary would be correct in imposing a requirement to have that Owner meet the costs of the Meeting and for the drafting and Registration of a Special By-Law if necessary, they’d be hard-pushed to claim that it was impracticable to convene an EGM – even if the date of the next AGM was only a few months off.
Impracticable from whose perspective? As I said, it depends on the circumstances, but as you requested, some relevant provisions of the SCMA are:
– Re the role of the Strata Manager with respect to convening and chairing Meetings, and of the Secretary’s to still assume their role; and,
– Re the ability of Owners to requisition a General Meeting and the subsequent role of the Secretary at Clause 31 (3) of Schedule 2; and more generally,
– I’d urge you and your like-minded Owners to read THIS excellent publication of the NSW Department of Fair Trading.
alinka – NO they should not, unless of course one of them is the Executive Committee Secretary who is the person responsible for convening General Meetings, but in a Plan as small as yours it shouldn’t have been too difficult for someone to consult with all eight (8) Owners about a suitable time, venue etc. and even if there’s no consensus, that’s what proxies are for!
Just as the Secretary convenes Meetings, without stating the obvious the Chairperson chairs them, but I say again that it’s customary for those functions to be delegated to a Strata Manager, who should discuss the details of venue etc with whoever it is that’s shown as the Owners Corporation’s nominee on their Agency Agreement; usually the Secretary.
The Motions to be included on the Meeting Agenda can be whatever is provided to the Secretary by the Owners concerned, so YES those Owners could submit a Motion about the Owners Corporation paying for the costs of the EGM, and that could have been resolved by those present on the basis of a simple majority vote one way or the other; so unlike the “non-special resolutions” there was no basis for the Strata Manager to dismiss it.
With regard to those resolutions, the Strata Manager should have known what type was required for each of the submitted Motions, and it’s their role to provide the Owners Corporation as their client with that advice and to re-word the Motions accordingly; that’s what you’re paying them for and it should have taken about 2 minutes “research” as the relevant provision of the SCMA is very clear at Sect 65A (with my emphasis in bold):
(1) For the purpose of improving or enhancing the common property, an owners corporation or an owner of a lot may take any of the following action, but only if a special resolution has first been passed at a general meeting of the owners corporation that specifically authorises the taking of the particular action proposed:
(a) add to the common property,
(b) alter the common property,
(c) erect a new structure on the common property.
As I said before, in the process of pulling its Strata Manager into line, your Owners Corporation also needs to review the current appropriateness of that Agency Agreement and, particularly so in the circumstances, its delegations and its nominee/s in terms of liaison with that Strata Manager.
Finally, it’s clear to me that you and the other like-minded Owners want those who requisitioned that do-nothing EGM to meet the entire costs of doing so, and whilst I can understand your sentiment it’s just not a practical option in my opinion. It will just end up as a they said : the rest of you said scenario, and with the Strata Manager just sitting back and relying the Schedule 1 charges (the disbursements schedule) that are outlined in the Agency Agreement that your Owners Corporation has already signed-off on; not worth the fight in my opinion.
Alinka – yours is a perfect example of the tail wagging the dog!
The Strata Manager works for the Owners Corporation (i.e. you and the other Owners) and they’re obligated to act in accordance with your instructions provided they’re legal in terms of the NSW Strata Schemes Management Act (SCMA) and any other Acts of relevance.
Even though the Agency Agreement that prescribes the terms of your Strata Manager’s appointment and their duties may delegate the role of Executive Committee Secretary to them, which gives that Strata Manager the ability to convene General Meetings, even then the elected Secretary of the Committee can, and in your circumstances should have, overruled the Strata Manager.
The correct procedure was followed when 25% of Owners (by unit entitlement) requisitioned the delegated Secretary to convene an Extraordinary General Meeting (EGM) but the SCMA then requires the Secretary to convene a Meeting to consider the Owners’ Motion/s “as soon as practicable” thereafter.
Clearly, in the circumstances you describe that should have been concurrently with the upcoming Annual General Meeting, and any Strata Manager worth what their client’s paying them (i.e. your Owners Corporation again) should have been in no doubt about the requirement for special resolutions, with ≥75% of votes in favour by unit entitlement for the Motion/s to pass; the SCMA is very clear on that provision!
It’s usual for an EGM to be paid for by the Owners who’ve requisitioned it, but because the Motions were incorrectly put and the 2 hour debate resolved nothing in terms of committing expenditure, resulting in a proper mess (a technical term) I’d be inclined to let it slide and pay-up from communal funds. After all, those 2 Owners are contributing at least 25% of those costs anyway!
So far as the Strata Manager is concerned, your Executive Committee needs to quickly pull them into line. Let them know who they’re working for, and if necessary amend their Agency Agreement to ensure that happens – perhaps by reviewing those delegations.
Rae – Whilst I wish that Strata Legislation was the same across all States & Territories, regrettably each seems to take whichever of those has the most recent Legislation, and then makes it their own by way of subtle changes that don’t always amount to improvements.
Consequently, some of the responses to date from people in other States/Territories are procedurally (and legally) incorrect in Victoria, particularly so with with the vote of your rusted-on Committee Chair, who as you’ve stated does have a casting vote at both Committee and General Meetings under your State’s Legislation.
Furthermore, there’s no point lobbying the other Committee Members about the removal of the Strata Manager, because as others have advised that can only be done by way of a simple majority vote at a General Meeting, and in order to have one specially convened for that purpose in circumstances where your Committee won’t, you need to to have a written nomination by ≥25% of your fellow Owners (determined by lot entitlement); a petition in lay terms.
Once you have been nominated, you can call upon the Committee Secretary or, if delegated, the Strata Manager (SM) to convene a Special General Meeting to consider and vote upon Motions to terminate the current SM’s Contract of Appointment, and to engage another.
As has been suggested in other posts, you and like-minded Owners will need to provide evidence in support of the Motion to terminate, have made substantial inquiries about a replacement SM sufficient to make a recommendation, and have thoroughly checked the specific termination procedures outlined in the current SM’s Contract of Appointment.
If the Motion to terminate is passed (simply majority), it’s then that the procedures referred to above come into play, and your Owners Corporation must follow those carefully in order to ensure a smooth hand-over of records etc from the current SM to the new one; not always an easy task when one of the parties is disenfranchised.
Should the Motion to terminate not receive majority support, then your only remaining avenue is to apply to the VCAT for “Orders of Termination”.