[Whale]

Replying to as one cetacean to another…..

I’m a little confused about which meeting/s you’re referring to, but as your most recent post (#2) refers to a period of 72 hours notice, I’ll assume that it’s an executive committee meeting, as general meetings require 7 days notice.

OK…… so back to your original post (#1), it’s a requirement in Sch.3:Cl.16 of the NSW Strata Schemes Management Act (SSMA) that the minutes of executive committee meetings (ECM) must be distributed to all owners either directly, or by placing them on the Owners Corporation’s notice board where one exists, within 7 days of such meetings and the latter case left on display for at least 14 days. The anomaly is that there’s no equivalent requirement for the minutes of general meetings (GM), other than for those to be provided with the agenda for the next general meeting.

Both ECMs and GMs must have “notices”, and in the case of the former the SSMA prescribes that it “must specify when and where the meeting is to be held and contain a detailed agenda for the meeting” [Ref: Sch3:Cl.6(3)]. Similarly, the SSMA requires that notices for GMs must include “forms of motions” comprising a detailed agenda, and compulsorily include at least the matters shown at Sch2:Cl.34-36.  

I think the above covers what the “rules” require, and bad governance or otherwise, non-compliance with the SSMA to the extent that it would have altered the decisions taken at the respective meetings (and no notified venue alone would qualify) could justify you making some “noise” and if necessary to advise your E/C Secretary of the possibility of you seeking Orders to invalidate decisions taken at the meeting/s under Sect.153 or Sect.154.

Sorry for all the links, but it’s better than cutting and pasting equivalent sections of the SSMA.

[Whale]

PJ – I’m now becoming confused by you “linking” your earlier post on the subject of a specific special by-law (SBL) HERE to this one about how “pergolas” as the subject of that proposed SBL is defined under the Strata Schemes Management Act, and by you now introducing another (irrelevant) piece of Legislation.

My interpretation is that in the context of a Strata Property it refers to items such as furniture, paintings, and similar “adornments” that may be placed in a building’s foyer, and items such as lawnmowers and gardening equipment that are all owned by an O/C; but certainly not to owners’ property such as pergolas whose maintenance/repair/replacement in proposed to be taken-over by your O/C under a SBL.

You earlier advised that your O/C was seeking legal advice on the proposed SBL, and while I’m still interested to know how its subsequently proposed attendance at the N.C.A.T. resolves, I think that you now seeking more possibly related “advice” on the matter (1) via Flat-Chat will only serve to confuse; I now am anyway!

[Whale]

airman – the strict legal position under the NSW Strata Schemes Management Act (1996) is that the Owners Corporation is responsible absolutely for the proper maintenance of its common property (which you acknowledge), that Residents whether they be Owners or Tenants cannot damage any plant that’s on any part of the common property, or more specifically in the situation that you describe, use any common property garden space for their own purposes, and that levy contributions may only be calculated from lot units of entitlement and cannot be varied in any way other than by a maximum 10% (disc.) for early payment where that’s been prior resolved by ≥75% of owners at a General Meeting.

Now that’s out of the road, I really DO appreciate what you and the other Owners (i.e. the Owners Corporation) are trying to do, but I’m afraid there’s no legal means by which those objectives can be achieved, and quite frankly giving Residents free-rein to plant whatever each personally chooses in common property gardens may prove problematic, particularly if those are at some stage found to be undesirable, noxious, or aesthetically unsuitable species.

So if the current state of play continues, then your Owners Corporation will be perpetuating a breach of the Act (by-laws) albeit desirable in its view, and be stuck with the costs of engaging a gardener to perform its maintenance obligations on sections of its garden space.

[Whale]

menkari – THIS previous discussion on Flat-Chat might assist, as may THIS fact sheet produced by the Eastern Area Tenants’ Service, but surely the lift maintenance company has in the past come across similar situations to the one faced by your Owners Corporation and could therefore offer some advice (?).

[Whale]

kaindub said…….That the lot owner has no ABN, insurance or tools is not an impediment to accepting the work..

…..and then he went on to very accurately post precisely why the above IS an impediment, and I’d add that there are additionally insurance implications if a person works for the Owners Corporation in anything other than a voluntary capacity.

I wouldn’t touch this Owner’s proposition with the proverbial barge pole.

[Whale]

Pamster – Scotty already answered your question; see below (ref: post 4 of this thread).

scotlandx said…

In the case of meetings of the owners corporation, technically there has to be a “meeting”.  That is – you send a notice out saying that a general meeting of the owners corporation will be held at X time on Y date at Z venue.

However, in some cases the resolution will be approved by the owners submitting their proxy and not attending.  I have seen “meetings” where forms have been sent out appointing the strata manager as proxy and providing for a vote either way on the resolution – in effect the meeting has been “held” on paper.  In those instances the owners are told not to attend, but of course they can if they want to.

(they did that once in our scheme, and we upset the manager by turning up)

With the strata law changes I am not sure this will be possible.  Maybe Whale or Jimmy can enlighten us further.  

… and to clarify, an E.G.M. is a “Meeting of the Owners Corporation”, and under the current N.S.W. Legislation there must, as Scotty stated, be a physical Meeting at a Venue advised to all Owners a minimum 14 days in advance together with the Agenda, whereafter the normal requirements for determining a quorum apply (i.e. including proxies).

The proposed N.S.W. Legislation that’s forecast to apply from September 2016 specifically allows for so-called paper meetings, where the Regulation that will then apply states the following; which may be interesting if the current definition of a “matter” applies, whereby each Motion on an Agenda would require a prior-determination by the O/C on the permitted “other” means of voting for each:

14. Other means of voting—owners corporation and strata committee

(1) An owners corporation or strata committee may, by resolution, adopt any of the following means of voting on a matter to be determined by the corporation or committee:

 

(a) voting by means of telephone, video-conferencing, email or other electronic means while participating in a meeting from a remote location,

 

(b) voting by means of email or other electronic means before the meeting at which the matter (not being an election) is to be determined by the corporation or committee (pre-meeting electronic voting).

 

(2) Without limiting subclause (1) (b), the other electronic means of voting may include requiring voters to access a voting website and to vote in accordance with directions contained on that website.

 

(3) An owners corporation may, by resolution, adopt postal voting as a means of voting on matters (other than elections) to be determined by the corporation.

[Whale]

slim – This issue has been raise a few times in this Forum, where I’ve advised that the customary interpretation of the Guideline produced by N.S.W. Land & Property Information (L&PI) is that:

1. Where a tree is on common property, then the Owners Corporation is entirely responsible for its maintenance (including removal where possible).

2. Where a tree is within/below the stratum of a lot and its on lot property, then the Owner is entirely responsible for its maintenance.

3. In a situation such as you describe where an Owner has apparently allowed a tree within their lot to grow to a height that’s above the stratum of that lot, then the cost of its maintenance is shared between the Owner and the Owners Corporation on a proportional basis, relative to how much of the tree’s height is within the lot’s stratum and how much is above it.

The stratum of the entire Scheme and/or of lot/s will be shown on the Strata Title Plan as a number of metres above a nominated fixed reference (such as the top of the building’s raft foundation slab), and so on an assumption that the stratum of the lot in question is 3m and the tree is in total 6m high, then the cost of its maintenance is shared 50:50 between the Owner and the Owners Corporation.

So contact the local Council in the first instance to ascertain if a Permit is required to remove that type of tree fern, and then have your Aunt pass that information on to her Strata Manager for the attention of the Executive Committee Secretary, together with a request that it be removed or trimmed (if that’s possible) within say 14 days in accordance with the terms of the L&PI Guideline, that is by the way more strictly interpreted in a similar “Who’s Responsible” document produced by Strata Community Australia, the Peak Industry Body for Strata Managing Agents.

[Whale]

Whale said….given your prior knowledge of the situation regarding pets at the Plan and the Owners Corporation’s reasonable approach (by not banning pets outright), you would very likely be issued with an Order to remove your dog.

PeterC said….Does NSW have a provision in the Act like the ACT one: that permission shall not be unreasonably refused?

Peter – as it appears every State and Territory of Australia merely tweaks the most recent version of whichever one has the most recent strata legislation, the answer to your question re. both the current and proposed NSW Legislation is YES, and as I was trying to point out somewhat obliquely, grahamd would in my opinion be hard-pressed to successfully argue against the decisions chocolate-wheel of the NSW Civil & Administrative Tribunal (NCAT), the ACAT, VCAT, QCAT, or any other State or Territory “CAT” that a By-Law in the terms suggested was unreasonable.

It’s of course grahamd”s call, but personally, as a Lab. is a largish dog for apartment living that’s therefore not listed on the RSPCA’s Register, I couldn’t argue by-law ignorance (not that its an excuse) and therefore wouldn’t be inclined to try my luck; but that’s me.

Over and out!

[Whale]

grahamd – I agree with PeterC to the extent that your Plan’s “rule” is so open to subjective interpretation that from that perspective at least it’s indeed “silly”, but as you’re in N.S.W. you need to check that a by-law in those terms has been properly Registered with the Strata Title by the Developer. You should already have been given a copy of the Strata Title, but otherwise you can search the relevant details HERE.

Registered or not, any of the Plan’s by-laws may be confirmed, amended, repealed, or added to by way of a compulsory motion on the agenda of the first General Meeting of the Owners Corporation once formed (or at any subsequent Meeting where no more than 25% of Owners disagree).

So were I in your shoes I wouldn’t rely on any of that, as quite frankly the intent of the off-the-plan “rule” to limit the physical characteristics of dogs that may be permitted post occupation is a reasonable one, albeit subjective, that you would in my opinion have difficulty challenging, even in circumstances where the Developer granted a worthless exemption (in order to secure a sale).

So what can you do?

If you’re determined or otherwise committed to the purchase, then you need to accept a likely situation where you will be at some stage found to be in breach of the Plan’s by-laws, and to thereafter be involved in a quasi legal process involving the NSW Civil and Administrative Tribunal and a set of scales where, given your prior knowledge of the situation regarding pets at the Plan and the Owners Corporation’s reasonable approach (by not banning pets outright), you would very likely be issued with an Order to remove your dog.

[Whale]

The wording of the special by-law (SBL) makes me think that your Plan has some inherent problems that result in water ingress and other weather-related events impacting some units.

So in circumstances where the Owners Corporation’s proper maintenance of its common property (i.e. the as-built building structure) is insufficient to entirely mitigate those inherent problems, the SBL permits Owners to at their discretion install awnings and similar structures in order to better protect their property.

So on the basis of that intended emphasis and objective, in my opinion it’s your responsibility to pay for the awning.

I’ve had a couple of post post thoughts……

I find it odd that the consultant recommended the fitting of an awning without prior knowledge of the Plan’s SBL and/or some prompting, but in any case if the Owners Corporation decides to act on that recommendation then it should pay, and if you decide to do that, then you should pay.

Whale 0815hrs 18/06.

[Whale]

Floyd0 – the Property Manager for the affected Unit is effectively the “agent” for the Owner, and in that capacity they reported the balcony damage to your Strata Manager who, as that damage was to common property, should have as “agent” for the Owners Corporation immediately conveyed that information to the Executive Committee; not to the unit Owner.

So in my opinion, if anyone is to be blamed for the costs of repairs that are now greater than would have been the case if earlier advice of the spalling problem had been reported and presumably attended to, then it’s your Strata Manager.

Not the opinion that you wanted I expect, but I’m afraid that in the circumstances you describe your Strata Manager was remiss, and your Owners Corporation is stuck with the costs of repairs.

[Whale]

Gay – The responsibility for repairs and the extent to which any insurance claim may assist in meeting the costs of those can be difficult enough to resolve without the introduction of complications, so IN NO CIRCUMSTANCES should your daughter arrange any repairs to the common property or to her own.

On the assumption that the external stairs are common property and that it was therefore the Owners Corporation (O/C) who arranged for the initial repairs, then the O/C remains responsible for attending to the repairs that are now necessary to that area and to any consequently damaged within your daughter’s unit.

It appears the O/C has acknowledged their responsibilities by undertaking the initial repairs to the staircase, so your daughter needs to now formally advise the Secretary of her Executive Committee (copy the Strata Manager) that unless all necessary repairs and maintenance to areas of its common property  including to areas within her Unit are properly commenced in accordance with its functions under Sect. 62 of the Strata Schemes Management Act (SSMA) within say 7 days, that she will be seeking Orders in the NSW Civil & Administrative Tribunal under Sect 138 of the SSMA in order to force the O/C to do so.

You’ll note that under Sect. 138 Cl. 2(b) an O/C will be judged not to have exercised its functions if has not done so after 2 months of it being requested to do so; verbally or otherwise (but a written request is preferable).

If the 7 days passes without a satisfactory outcome, then your daughter or her Agent needs to lodge THIS application in the first instance, and if Mediation fails, then come back to FlatChat for further advice regarding the Application for Orders.

Whilst it may be a worthwhile bluff, there’s no provision for any loss of rent that your daughter may suffer to be met by way of recompense by the O/C (of which she’s a part by the way), although the proposed new Strata Legislation in NSW will include such a provision in circumstances such as this, and your daughter may make mention of this as a further incentive for it to get moving.

[Whale]

clement – when advertisements for Strata Management Positions typically include words like “$xxxxx Salary plus Schedule B’s ” it makes me wonder!!

Regarding the Strata Manager’s attendance at a meeting, I’d adopt the option of the Community Justice Centre and see how they react.

Finally, if you’ve been dealing with a Strata Manager who’s not also the Principal of the Agency, then I’d suggest that your E/C approaches the latter regarding the issues.

Good luck, and perhaps post again when you have a result.

[Whale]

Felix – common walls, floors, and any original covering on them such as waterproofing, tiles, magnesite, but not paint are the responsibility of the Owners Corporation (O/C), and so conversely any internal walls and their coverings are the responsibility of the Owner.

A general interpretation is that a wall of the shower and anything within it such as plumbing that’s also a common wall such as one on the perimeter of the building or adjoining another lot is the responsibility of the O/C, and a wall of the shower and anything in it that’s internal such as one separating it from a bedroom or a kitchen of the lot is the responsibility of the Owner.

There’s a more detailed guideline HERE to assist in interpreting who’s responsible for what in Strata.

There’s an issue here that I in part canvassed in THIS earlier post, where there’s an argument that Owners should be held responsible for the entirety of repairs where a lack of maintenance and/or timely advice of a problem to the O/C or its Strata Manager made the extent of damage and therefore the cost of repairs higher than it would otherwise have been (i.e. with more timely advice).

If your O/C decides upon the stance that I took with our Plan, again as outlined in my earlier post, then it’s best to leave subsequent discussions about who didn’t inform who to the Owner and their Property Manager (rental agent). 

[Whale]

surfbroker – it appears that you are in NSW, where as you state that the retaining wall was necessary due to the original building works on the adjoining property, in the absence of any formal agreement to the contrary, the owner who altered the natural state of that land and subsequent owners of it are entirely responsible for on-going repairs and maintenance of the retaining wall that Council would have likely required under the terms of their Development Consent, unless it acts as the foundation for a dividing fence when as Peter C stated (post #2), costs are then shared under the provisions of the NSW Dividing Fences Act (DFA).

Ref: Sect 3 of the DFA and in particular the definition of a “fence”.

That’s the legal position as I understand it (I’m not a lawyer), but as your Owners Corporation and its neighbour have a mutual interest in ensuring that the land on and around the common boundary is stable, it would be advisable in my opinion to attempt an amicable solution.

[Author]

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