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Maryjane – sorry to overload you with “Guru” questions, but I was wondering about on what basis the dissenting “family member” is voting; do they hold the Owner’s proxy on each occasion?
And lastly….. did your O/C at least consider borrowing the money for the repairs as I suggested, because it appears to me that may be the solution to getting the works done now, and collecting the special levy to repay that over time; unless of course the 5 Owners can each stump-up around $16K in one hit.
I don’t wish to appear disingenuous, but really! OK the gardener shouldn’t have abused the Committee Member, but as he’s since personally apologised I’d be inclined to let it rest there!
OK thanks for that, and the good news is that you don’t need the agreement of the dissenting Owner, just a majority vote in favour at a General Meeting; which you have.
So don’t have another Meeting or wait for the now wavering Owner to convince the dissenter, but just use the majority vote at the Meeting that’s already been held (ie when 3/5 were in favour) and instruct your Strata Manager to get cracking with invoicing and collecting that special levy.
PS – if the repairs are becoming critical as a consequence of the delays that you’ve described, you may suggest to your O/C that they contact one of FlatChat’s sponsors HERE about the pros & cons of borrowing the required funds, and then making the repayments via that Special Levy…..Whale 1740.
Thanks maryjane – when you say that this one Owner won’t contribute to common costs, are you saying that they’re not making Levy Contributions at all, or just that they won’t contribute to a special levy to fund the repairs that you’ve listed?
Whilst awaiting your reply, the situation (in NSW) is that your Owners Corporation (comprising you and the other 4 Owners) is legally bound to follow the requirements of the Strata Schemes Management Act (1996) and the Regulation (2010).
The relevant legal provisions in your situation are Sections 62 ,76 (clause 4), and 80, where in summary your Owners Corporation (O/C) has an absolute responsibility to properly maintain and repair its Common Property (which you’re trying to do), is able to raise a Special Levy if there’s insufficient funds to do that in its Administrative and Sinking Funds, and can collect any non-payments by an Owner via normal debt-collection processes.
All of the above can be resolved by way of a simple majority of Owners voting in favour at a General Meeting of the Owners Corporation, so a NO vote by 1 dissenting Owner in a 5 Lot Strata Plan cannot frustrate any part of the process, including the raising of a Special Levy.
I have a feeling that there’s more to come with this, so we’ll await that detail after you’ve had a chance to read through the “links” that I’ve provided and to put those in context with your situation.
Apologies for answering your questions with questions, but do you have a Strata Manager?
To avoid replies heading down the wrong path, could you please elaborate a little; like what type/s of repairs are being proposed and does this dissenting Owner own the majority of Lots or have the majority units of entitlement?
It’s the Secretary’s role to ensure that Minutes of General Meetings are taken and distributed, and whilst the NSW Strata Schemes Management Act (1996) incorporates an entire Schedule on the procedures to be followed for those Meetings, regrettably there’s nothing included about the timeframe within which those Minutes must be distributed, other than to state that Proprietors can request a copy, and in the event that they don’t receive them or they’re not otherwise distributed before the next General Meeting, then they must be provided with the Agenda for that Meeting.
All a bit wish-washy really!
Frans – further to Jimmy’s response and to your query “why?”, the Department (no longer the “Office”) of Fair Trading still has around eight (8) Divisions, the Heads of which as your so-called “VIPs” would be delegated to sign correspondence on behalf of the Commissioner.
TW – thanks for that additional detail.
I wouldn’t go in as hard as KWP, but I agree that it’s a bit of a conundrum particularly as the Owner concerned has not requested the O/C to make repairs to the roof; perhaps because they know that’s their responsibility (?).
I remain of the opinion that the burden of proof is with the Owner, but so far as the potential sale of the affected Lot is concerned, I’d suggest that in the first instance your O/C discusses the matter with that Owner; who knows, they may accept responsibility for or come to some agreement about the roof.
If that’s not forthcoming, then your O/C should wait until the a sale is advertised and then advise the selling Agent in writing that it “has no records of the extended roof above the courtyard ever receiving consent in accordance with Sect 65A of the NSW Strata Schemes Management Act (1996)”.
That form of advice is not stating that there is no consent, just that the O/C has no records in that regard, and provides the Owner a further opportunity to meet their burden of proof by providing anything that they have to the contrary, and concurrently puts the selling Agent on-notice to properly advise potential purchasers.
Then if as you predict, a new Owner of the affected Lot requests the O/C to repair the roof, at least there’ll be bargaining point to limit its liability for that and even to perhaps head some way down the path suggested by KWP – in circumstances where any Special By-Law to address the matter could not be retrospective without the prior written consent of the current Owner.
TW – (my) logic suggests that the burden of proof is with the Owner who made the changes to the Common Property of the Owners Corporation, but would you mind providing some context to the situation?
Mrs K – I thought I’d share one of my experiences before your post drops off the bottom of the list.
Your problem, and indeed mine, is in my opinion due to the Department of Fair Trading permitting the numbers of its enforcement and investigatory staff to decline to the extent that it’s now forced to rely on telephone investigations, with an overt emphasis on achieving either a mediated outcome or a stalemate where the matter reduces to one person’s version of the events against that of the other holding contrary views.
My conclusion arises from a past complaint against the Licensee of a Real Estate Agency, who was subsequently “investigated” by an Officer of the Department who later admitted to me that he encouraged the Licensee to submit documentation that he knew would allow him to then “close” that investigation.
The Fair Trading Officer initially refused to discuss the issues with me due to “privacy”, but when I read him contradictory documentation earlier received from the Licensee, he complained about his workload and a backlog of complaints and then verbally admitted that the Licensee’s more recent documentation was post-dated, but that he would nonetheless consider my compliant closed.
That wasn’t good enough for me, so I began contacting the Corporate HQ of the Franchise held by the Licensee, and was eventually able to speak with the “minder” to the CEO, who arranged for her boss to contact me several days later.
I got a fairly sympathetic hearing from the CEO, who offered to contact the Licensee in order to get her side of the story (there are always two sides) and to then contact me again.
I have never been able to ascertain the whole story, but when the CEO contacted me again I gained the impression that when he telephoned the Licensee (his Franchisee) he received some of the same attitude that I experienced and complained about, but in any event, he simply stated… “I don’t want that person wearing my shirt; leave it to me”.
The outcome was that the Licensee’s franchise was terminated!
So after all that, I’d suggest that if the Agent that you’re complaining about is a Franchisee of a Corporate Group (many are), then try an approach to them instead of wasting your time with under-resourced public sector bureaucrats.
You’re correct in that a special resolution would be required, as would supporting information from you about the size / location of the skylight, the contractor who’s doing the work and their workers compensation / liability insurance policy details.
The post-installation maintenance and repair of the skylight would by default fall to the Owners Corporation unless in order to avoid that, it resolves to draft and register a Special By-Law to, with your prior written consent, transfer those responsibilities to you and to all subsequent Owners of your Lot.
Payment for the costs of the Special By-Law covering the above for your Lot would normally be your responsibility, unless your Owners Corporation (O/C) anticipates receiving similar proposals from the other Owners at some future time, in which case the Special By-Law would be worded generically and be paid for by your O/C.
NO, the Executive Committee cannot prevent you from inspecting any of your Owners Corporation’s records, and you can apply in writing to inspect those under the provisions of Sect 108 of the NSW Strata Schemes Management Act (1996); the currently prescribed fee payable to the Owners Corporation is $31 for the first hour that the records are being made available and an additional $15 for each half-hour thereafter, plus any administrative fees disbursements that your Strata Manager may themselves charge for printing etc.
Even though it sounds as though your Executive Committee does not wish to make those records available to you, and that’s understandable given your last post regarding its Secretary paying herself for cleaning duties, it would still be advisable in my opinion for you to advise (with your application) precisely what record/s you wish to inspect with the expectation that your Strata Manager (S/M) will have those ready, as opposed to just dumping you with the lot and thereby forcing you to trawl through everything.
Good luck!
I’m inclined to agree with KWP with this one, and if it’s the case that the hot water systems in their entirety were installed when the building was constructed, that the solar component including the circulation pump/pipework was installed on/through the common property at that same time, that those systems are discrete and serve each individual Lot (only) with hot water tanks being installed within each of those Lots, and there are no relevant By-Laws in place then:
a) who pays for colourbond repair? A) the Owners Corporation
b) who pays for mounting bracket replacement or repair? A) the Owners Corporation
c) who maintains external hot water solar panel? A) as it’s attached to the Common Property, the Owners Corporation could either repair or remove it.
d) who maintains internal hot water tank? A) as each serves only the Lot and is within each of those Lots, the Lot Owner
e) if (c) and (d) are different, then where along the plumbing does the responsibility start & end for the Strata & the owner? A) Owners’ responsibility is for the hotwater tank, so the circulation line/s into and out of that tank would be the Owners Corporation’s responsibility.
(f) who maintains external hot water solar panel mounting bracket? A) see b)
(g) Who is responsible for internal damage should a tank fail? (they are positioned internally on the top floor as originally installed, there is no other real location suitable, and damage would ensue from any leak!) A) The Lot Owners would be responsible for damage within their Lots, and provided there’s a “safe tray” installed under the tank in accordance with NSW Building Codes and the “leak” was a defined event, then resultant damage would be claimable against Contents Insurance.
(h) if the external hot water panels are Strata responsibility, can the Strata “decide” to take them all down when replacing the roofing sheets and not replace the hot water panels? (to avoid future roof rust issues), leaving owners to rely on their own internal tank electric element? A) see c)
and….. would Strata potentially become liable for the consequential increase in electricity bills that owners would experience if the external panel & bracket were removed (as the hot water tank would need to be heated solely by electricity, with no solar heating panel)? A) of course not!
All of the above said, you and the other Owners ARE the Owners Corporation, so if you collectively want the solar panels (for example) to become your collective responsibility, then you need to put a Motion along those lines on the Agenda for your next General Meeting and put it, and any consequences ($) to the vote.
Members of the Committee can be paid, but only if that’s resolved by those present at a General Meeting of the Owners Corporation (O/C), and then only for their role on the Committee with payment being made twelve (12) months in arrears; that is for services provided not for those to be provided.
So the work that your Secretary’s paying herself for does not meet the requirements of NSW Strata Schemes Management Act with regard to Committee Members being paid, and unless she’s been engaged by the O/C, is covered by indemnity insurance, has an ABN, and properly invoices the O/C then she’s also in breach of audit provisions and her activities must cease.
That can be resolved by a majority vote of the Executive Committee, the O/C, or by the Strata Manager if they’re making the payments (which will likely breach their own internal procedures and those in the NSW Property, Stock, and Business Agents Act).
The Strata Schemes Management Act (in NSW) provides that a Strata Manager’s services may only be terminated by way of a resolution voted upon and passed at a General Meeting of the Owners Corporation, and then only in accordance with the conditions contained in the Strata Manager’s “instrument of appointment “; and that’s the Strata Management Agency Agreement between your Owners Corporation (O/C) and its Strata Manager.
So the first thing your O/C needs to do is to peruse that Agreement, and in particular the Clause relating to its termination, where save a significant breach of fiduciary responsibilities, the usual provision is that the O/C must provide its Strata Manager with three (3) months written notice of its intention to terminate. If that’s not possible given the Agreement’s expiry date, then it’s easiest to let the Agreement expire and roll-over, and then give the prescribed notice.
Once the termination provisions have been determined, then your O/C Secretary should convene the General Meeting (an AGM if the timing suits or an Extra Ordinary Meeting otherwise) and place a suitably worded Motion on the Agenda. Take care to ensure that any proxies submitted are properly completed in terms of Proprietors giving specific instructions concerning their vote on the Motion to terminate the Agreement.
The above summarises the legal aspects, but the relationship aspects are equally important, and in that regard your O/C should seek proposals from other Strata Managers prior to the General Meeting and put a complementary Motion (to the one to terminate) on the Agenda covering the appointment of its new Strata Manager, and ensure that there’s a hand-over process locked in – because it’s rarely good enough to rely on the professionalism and goodwill of the parties to strictly follow those provisions even though they too are provided for in the Agreement!