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With regard to the safety netting, there’s a school of thought suggesting that parents of small children should be proactively installing devices on balcony facing windows and doors to restrict the opening width of those such that their children cannot access the balcony area at all – unsupervised.
Then there’s another suggesting that child-proof netting may be classified as a “child safety device” (CSD) which may be installed by notification only to the Owners Corporation after installation under the provisions of Clause 64A(6) of the NSW Strata Schemes Management Act…… but that only applies IF that type of CSD is prescribed in a regulation, where right now Clause 31 of the current Regulation (2010) states:
(3) A screen, lock or any other device is a complying window safety device for the purposes of section 64A of the Act if it:
(a) is capable of restricting the opening of a window so that a sphere having a diameter of 125mm or more cannot pass through the window opening, and
(b) is capable of resisting an outward horizontal action of 250 newtons, and
(c) has a child resistant release mechanism, in the case of a device that can be removed, overridden or unlocked.
….. clearly none of the above would be satisfied by child-proof netting!!
This is a difficult issue, where I’d suggest that your Strata Manager advises the Owners concerned that child-proof netting is not at this time a complying child-safety device under the Regulation (2010), that they might in the interim (or instead) consider fitting complying devices to the balcony facing windows/doors where notification only is required to the Owners Corporation (O/C), and that the O/C will be soon drafting a generic Special By-Law (SBL) to manage all existing installations and any that may in future occur.
Then as I don’t think that an outright refusal of this or similar “notifications” could be sustained if even on purely emotive grounds, you need to have your Executive Committee meet to consider the suggested SBL and what it should be encompass – including (but not limited to) the need for O/C consent, the appearance issues that you’ve raised, product specifications / certifications (in Aust.), indemnifying the O/C, and on-going maintenance responsibilities incl. for all points of attachment to the common property.
With regard to the internal renovations proposed, the Strata Manager should know what to do – including advising the Owners to, prior to any works commencing, supply details of precisely what is proposed and when, including tradespeople’s details (incl. licenses and insurance) so that it can be properly considered by the Executive Committee initially, and perhaps by the O/C if the renovations are to incorporate any changes and/or additions to areas of common property within the Lot.
Mike said… What I don’t understand is how disputes (in a 2 Lot Strata) are dealt with.
There are dispute settlement procedures enshrined in the NSW Strata Schemes Management Act but in the absence of consistent goodwill between Owners, they’re otherwise resolved with difficulty unless the person undertaking the development can use valid reasons to have the units of entitlement of one Lot differ from the other.
It’s usual for a single Invoice to be received showing separate line items for each of the Administration and Sinking Funds, and a total amount payable as the combined Levy.
Have you or any of the other Owners checked the Schedule of Unit Entitlements that would have been included as an Addendum to the Agenda of your last AGM?
That would clearly show the applicable components of each Owner’s combined Levy payments and reveal any accounting errors by your newly appointed Strata Manager, which surely they’d have corrected by now if any Owner/s had queried their original Invoice/s and those were in error (?).
It’s by no means unusual or even unreasonable for some Owners to adopt what you describe as the “monkey syndrome” and expect their Executive Committee (E/C) to either attend to the day-to-day running of the Plan or to delegate that to its Strata Manager, and if a Member of that E/C doesn’t or won’t work well with the others then they won’t be re-elected; will they?
If nobody wishes to nominate and serve on an Executive Committee (E/C) then either the Owners Corporation (O/C) must assume its role thereby requiring General Meetings to make decisions that would otherwise be delegated to an E/C, or the O/C can resolve to delegate the E/C functions to its Strata Manager and to detail those in the Strata Management Agency Agreement.
Whilst there’s a prescribed maximum number of persons who can serve on an E/C there’s no minimum, so YES, one person (with a lot of spare time) accepting a nomination and a position as an E/C Member could take-on the roles of Chair, Secretary, and Treasurer.
Jef – In so far as the Water Rates (now called Service Availability Charges) would be already invoiced directly to the nine (9) Owners whose Lots share a common water meter, and those same Owners would already be contributing to the Plan’s Water Consumption Charges via their respective Levies albeit in accordance with the Units of Entitlement of their Lots and not the actual water their Lots consume, I don’t understand what the proposed Special By-Law is trying to achieve.
Perhaps you could clarify that.
With regard to Special By-Laws (SBL), only those that upon Registration make Owner/s responsible for the maintenance of some part of the Common Property (for which the Owners Corporation would otherwise be responsible) and/or grant Owner/s the exclusive use of some part of the Common Property require the prior written consent of those Owners to the making of such as SBL.
So the SBL that your O/C proposes (although I as yet don’t understand why) would require the consent of a minimum 75% of those Owners present both personally and by proxy at a General Meeting, with that percentage determined by the sum units of entitlement of those voting for consent and the aggregate units of entitlement for your Plan (i.e. a “poll vote”). So if around 7 of those 9 Owners attend the General Meeting and vote against the SBL, it will fail.
Remember also that a SBL is not legal until it’s Registered on the Strata Title.
Janet – I understand how you must feel, but before you decide to throw in the towel by agreeing to all of your Owners Corporation’s demands I have a few final comments…..
Firstly, consider the ramifications upon the future saleability of your property when a properly conducted Strata Search reveals structural faults that were not only rectified at the cost of the Owner, but will be the responsibility of a new Owner should they again arise.
Secondly, the consensus of replies to your original post is that you are not legally responsible for common property repairs / maintenance and that any provision of your Owners Corporation’s proposed Special By-Law that makes you and subsequent Owners responsible for those repairs would be unenforceable without your prior written agreement to its making and registration.
Lastly, if you’re determined to obtain more legal advice then at least ensure that you seek the services of lawyers that are very well experienced in Strata matters such as Makinson and d’Apice (Beverley Hoskinson-Green) who are sponsors of this Forum.
Whatever you decide to do, good luck with it Janet.
Janet – thanks for typing that entire document as prepared by your Owners Corporation’s Lawyers and for your detailed explanations.
Firstly, I’m not a Lawyer so please don’t take anything in my response as legal advice; it’s just experienced advice with a dash of common sense and a desire to see some form of compromise move things forward.
So….. as the stairs themselves aren’t common property, in the absence of some compromise your Owners Corporation, of which you are ≅10% by the way and therefore paying at least that proportion of the Lawyer’s fees and of any repairs that it may yet make, is entirely responsible for repairing the points of attachment of those stairs to its common property, the access point through the ceiling of your Lot, and the structural members within the attic.
So that dispenses with Items 4 (a), (b), (d), (e), (f), (g) and (h) as those for which your O/C is responsible.
I wouldn’t be acceding to Item 5 as there are mechanisms in the NSW Strata Schemes Management Act to handle breaches, those would override anything in the proposed Special By-Law, Clause 6(b) is only there because your O/C wants a single SBL to cover all affected Lots, and in any case a SBL granting exclusive use can’t be rescinded without the prior written consent of its beneficiary (i.e you and subsequent Owners of your Lot).
Motion 3 is only enforceable against the original Owners of the Lots.
In order to make this response slightly shorter than an epistle, in my opinion the Lawyer’s document is a beautifully worded bluff incorporating some maybe penalties and possible consequences all designed to coerce some existing Owners into agreeing to maintain some Common Property that, either in terms of what was consented by Council or in some way since, has been altered by persons other than the current Owners …. in return the O/C will grant each of you the exclusive use of that area in circumstances where nobody else could use it anyway, and where the O/C could reasonably be expected to have prior knowledge of the alterations originally commencing and to have put a halt to them at that time.
As a possible compromise, put a halt to searching for whatever documents Council may have or may once have seen and perhaps you and the other Owners could propose an amended SBL (one) that grants you each exclusive use privileges to the staircases / ladders and attics and requires each of you to maintain those items including associated Common Property AFTER your O/C undertakes all those repairs for which it’s responsible (and for which your collectively contributing anyway), obtains the Engineer’s certification, and obtains Council approval.
In the absence of such a compromise, I can see this indefinitely hanging over your head like the sword of Damocles!
To conclude (briefly), a shortage of funds necessary for your O/C to itself undertake these works is no justification for it to attempt to shift the costs of those to individual Owners, funds “borrowed” from the sinking fund need to be repaid by increased Levies and/or by strata finance, and in the case of your 10 Lot Plan legal fees in excess of $12,500 cannot be approved by the Executive Committee.
Janet – the short answer is NO, your Owners Corporation cannot enforce a Special By-Law (SBL) of the type proposed unless they have your prior written consent; the relevant section of the NSW Strata Schemes Management Act is 65A(4)which states:
A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless:
(a) the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and
(b) the owners corporation makes such a by-law.
OK, there’s a subtlety there around allowing an Owner to “take action” when those in your Villa have already been “taken”, but it sounds to me like it’s this Clause that your O/C is trying to use to legitimise their proposed Special Resolution (at the EGM) and subsequent SBL.
As the Secretary and Treasurer of a self-managed Plan I can appreciate what your Owners Corporation (O/C) is trying to achieve and why, but it’s a bit of a stretch for it to assert that it had no prior knowledge of the stairs (legal or otherwise), and that it could not have introduced the proposed SBL when the Villa was owned by the original Owner, or even made a suitable notation on the S109 Certificate that would have been requested by your Solicitor / Conveyancer at the time of your purchase.
So in my opinion, and on the face of it, your O/C is required to properly maintain its Common Property, and if that means repairing the upper level of your Villa so that it’s suitable for its intended use, then so be it!
I say “on the face of it” because we’re so far unaware of any extenuating circumstances such as whether the upper level of your Villa is a habitable area (or not), if you may have in some way contributed to the “sagging” (e.g. by storing excessively heavy items), but whilst any of these things may mitigate the O/C’s liability to maintain the area, none would negate it.
So far as the holding of the EGM is concerned, without knowing the nature of your Application to the NCAT and why it was dismissed I can’t comment on what effect an Appeal would have, but I’d continue to decline any requests by your O/C to consent to the making of their SBL and let the Meeting proceed.
I (and no doubt others here) would be interested to know what if anything has occurred with the stairs / ladders to the other five Villas, and if your O/C is attempting a similar approach with those Owners, and what consequences are being suggested under Strata Legislation by the O/C’s Solicitor if you withhold consent to the SBL.
Don, whilst we don’t yet know the reasons for your query, if your Plan is experiencing problems with illegal parking I’ll let you in on a little trick that one of our Sons and me tried at his strata building, near a commuter railway station.
His Owners Corporation had Registered a Special By-Law covering the wheel clamping and removal of illegally parked vehicles and had purchased a few wheel clamps, but the E/C was hesitant to use them on the same half-dozen or so commuters’ vehicles that were regularly parked in visitors carspaces and in the car wash bays.
So one night he and another couple of cooperative Owners parked their vehicles in some of those carspaces, and we then conspicuously fitted those bright yellow wheel clamps and a placed a similarly coloured typewritten note from the Owners Corporation on each of the windscreens to advise that the vehicles would be towed off-site on the next day.
Then during the next day they put their vehicles back in the correct carspaces (one level lower) and after that, like magic, the illegal parkers disappeared!!
I just rang our Son to check on the current status, and he said that whilst different “visitors” have since appeared periodically, the same trick has chased them away – even though they’ve had to co-opt different Owners to make their vehicles available as the hapless towees.
Austman asked…. Did the SM approve payment for the antenna?
Colosus replied …. No She did not. The secretary also showed me via email (where) the mans wife bullied the SM to send out a antenna tech twice after the accident since there (sic) newly installed antenna needed to be fine tuned.
♦ my emphasis / comment in italics.
So in summary, a tenant with “history” climbed up on the roof to remove an existing common TV antenna and to replace it with their own, damaged the common roof (tiles) in the process, and the Strata Manager without any prior advice to or discussions with the Executive Committee decided to engage a contractor to “tune” the tenant’s TV antenna and to submit an insurance claim to repair the damaged roof (and goodness knows what else).
As I suggested earlier, Colosus’ O/C should re-assess their Strata Manager’s delegated authority and perhaps consider some limitations upon those in the context of her past actions, and then put a Motion to sensibly “review” the Strata Manger’s Agency Agreement to reflect that re-assessment at the next AGM.
Might be enough on this topic now don’t you think?
No problem; I’m glad that you and those like-minded Owners achieved a good outcome.
One last word of advice though, before you go too far into the selection process for a new Strata Manager, check the Agreement with she who “wished you peace”, and specifically those clauses about termination (before the end of the Agreement if that’s relevant), and about the hand-over of your Owners Corporation’s records and accounts to a new Strata Manager.
Remember as “peaceful” as yours may now be, outgoing Strata Managers often behave like outgoing Governments and bury their mistakes; in this case that’s your records!
The Strata Managers often place signage on the building, typically near the entry door or the car park entry. Alternatively, if you can gain access, have a look at the Owners Corpration’s Notice Board.
PS – I just realised that it may be the Managing (Rental) Agent of an adjoining Lot that you wish to contact, in which case YOUR Strata Manager may have received the prescribed Tenancy Notification under Sect 119 of the NSW Strata Schemes Management Act, so try that approach.
Thanks Austman, but my observations about the Strata Manager were based purely on the basis of Colosus’ posts, where he said that it was a tenant who changed the Common Property, and by his wording hinted that notwithstanding that the Executive Committee (or at least some Members) expected that person to be invoiced for the resultant damage, the Strata Manager took the easy decision to eventually make an insurance claim due to her past “long-standing friction” with that tenant.
It was Colosus, not me, who suggested some illegality as the Strata Manager may have stated that it was a tradesperson/contractor as opposed to the tenant who caused the damage which was the subject of the Insurance Claim. My response was “who would know” without taking a look at the Claim.
My observation about the Strata Manager acting contrary to the Law was a reference to another of Colosus’ posts where she, in her delegated role of Secretary, convened an Executive Committee Meeting to push-through a Member’s proposal to appropriate a section of the Common Property to expand their driveway. In NSW that’s something that needs to be considered by way of a Special Resolution at a General Meeting, and so the Strata Manager was acting contrary to the Law.
As always, it’s good to have your input and I reiterate that where Owners Corporations are dealing with a good and cooperative Strata Manager then your approach and opinions would be entirely valid; sadly in Colosus’ examples that’s not the case – hence my contrary opinions.
Austman – I agree with your proposition where an Owners Corporation properly delegates some of its functions to a competent Strata Manager who then exercises those in accordance with Strata Law, and touches-base with the Executive Committee when exceptions or atypical situations arise.
If you had read all of Colosus’ posts on this topic and the others where it’s clear that the Strata Manager that you’re siding with has demonstrated a propensity for taking the easy way out and acting autonomously despite the contrary requirements of the Law, then like me you may have taken a different line.
Now that I’m briefly in an area that’s within Telstra’s 96% wireless coverage envelope, and even though Panamenke’s EGM is over…..
YES dech, the Secretary (in this case) could “be” the Meeting, but there still needs to be a physical location for it so that those wishing to personally attend can.
With regard to those pre-completed proxies, in addition to those needing to be completed by the Owners granting them, if they authorise the proxy to vote on the Motion relating to the re-appointment of the Strata Manager (S.M.) then that Owner must have themselves shown their voting instructions for that Motion at Item 3 of the Form, and conversely if Item 3 is blank, then the proxy can’t be used for that vote.
Finally if Item 3 was also pre-completed by the S.M., then any proxy votes subsequently recorded against the Motion for their re-appointment would be invalid as they’d be conferring a pecuniary benefit (on the SM).