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Without you or or Secretary obtaining a copy of the Claim – who would know?
Whilst I doubt that any Strata Manager would be THAT foolish, you need to have a look at the nature and costs of the Claim, and as I said before, because you have one of those Strata Managers who runs with their own agenda when that makes their life easier, your E/C needs to place some limits upon both the functions and the extent of those that the Owners Corporation delegates to her in the Strata Management Agency Agreement.
So in advance of the next AGM, obtain a copy of that Agreement and have your E/C Members have a very close look at the Clauses that delegate certain functions of the Owners Corporation (and the E/C) to the Agent.
There will be a Clause similar to “Appointment of and Delegation to Agent”, and after reading that and then considering how much involvement Members really want to accept, re-assess your Strata Manager’s authority and any limitations that you need to place upon those in the context of her past actions, and put a Motion to sensibly “review” the Agreement to reflect that re-assessment at the next AGM.
Colosus01 – the expansion of what amounts to be a shared driveway to the benefit of only one Owner is a situation where a SBL or a Licence would be necessary, but as Jimmy said, whether after (perhaps) consenting to that at the General Meeting your O/C also resolves to grant a Licence or Register a SBL would depend upon the specific circumstances – such as the layout of the driveway, whether the O/C wants to be paid for the area covered by the expansion (1), and whether it wants to shift the responsibility for maintaining and repairing that area to the Owner (2) – because a Licence is the means to achieve (1) and a SBL is the only means both (1) and (2).
Given the past decisions of your Strata Manager (i.e. in your other posts about the TV Antenna and the Insurance Claim) it’s clear she’s inclined to push for the easiest short-term as opposed to the best long-term solutions, so consider that both a Licence to use Common Property a SBL granting the exclusive use of Common Property can be made specific to an area; in your O/C’s case only that part of the shared driveway that benefits the Owner who seeks to expand it.
I’m a migrating whale right now, and so I have to respond briefly whilst I have internet access.
Whilst I’ve not come across this particular shenanigan before, I reiterate that a physical Meeting needs to take place, where Owners can either attend personally (as you and like-minded Owners should do) or have their proxies tabled by the Secretary on the Form prescribed in the Act, where the Owner granting their proxy is required to themselves write-in the name of the recipient.
One of your problems will be that proxies need to be given to the Secretary at or before the commencement of any General Meeting, so don’t hang onto them and present them to the Strata Manager on the day.
The salient points are that a Meeting cannot be “held by proxy” and further the pre-completed proxies are not in compliance with the spirit or the requirements of the Act.
So either attend the Meeting and, armed with your proxies and the personal attendance of like-minded Owners move that Motion to have the Meeting adjourned, and if all else fails seek those Sect 153 Orders; remember though that you’ll need to prove that the outcome/s of the Meeting would have been different had it been convened and held legally.
Back on the road now – maybe Jimmy et al can add something additional that will assist.
A Strata Search (if you commissioned one) should have revealed that Policy, but it sounds very much like your Owners Corporation (O/C) has Registered a Special By-Law (SBL) to limit owners’ ability to turn the car park area into a short-term parking station for the commercial use of non-owners.
The best means for you to attempt a change to that Policy is to place an appropriately worded Motion on the Agenda for the next General Meeting of the Owners Corporation, and to seek the required 75% (minimum) of those in attendance to vote with you to have the SBL amended or repealed.
Until such time as that vote can be passed, I’m afraid that you’re stuck with that $500 quarterly fee!
Gees, lots of question there!
Perhaps I should respond to the most important one first, and then explain why.
In my opinion the EGM is not properly constituted because:
1) It’s doublful that even in 2014 ‘electroic meetings’ are legal. Even though that’s an excellent means to encourage participation and I employ on-line voting for General Meetings of our O/C, I’m of the opinion that a quorum must first be achieved at the physical location for the Meeting by those ‘present’ both personally and by proxy and entitled to vote. So even if the Secretary has “farmed” a whole lot of proxies with the assistance of your Strata Manager, she would still have to BE THERE in order to exercise those to achieve a quorum.
2) On the subject of “proxy farming”, whilst it’s not illegal (yet) if your Strata Manager has directed Owners to grant their proxies to the Secretary as opposed to just sending the papers to her, then to be kind that’s naughty, and if they’ve actually written the Secretary’s name or position name on the prescribed Form before sending it out to Owners then that’s illegal.
3) The Secretary was legally nominated and elected as a Member of the E/C, but if the other three nominated themselves (as opposed to nominating each other), then that too is illegal, as strictly speaking is their subsequent “vote” to appoint themselves because that should have occurred (and been Minuted) at the E/C Meeting following the conclusion of the AGM.
So in my opinion an EGM convened and proposed to be held as you describe would be illegal unless item (1) is complied with, and whilst I can’t comment definatively on the other items because I don’t know the finer details, the best means to “call it off” would be for you or a like-minded Owner to advise the Secretary that you want to attend the Meeting personally. Then, armed with sufficient proxies from all those like-minded “workers” who don’t want the Strata Manager to be reappointed and/or other matters to be resolved at the Thursday Meeting by the means proposed, move a Motion to adjourn the Meeting and then use the proxies to pass it.
If it’s too late for you to coordinate that approach, then you and/or the others who couldn’t attend the Meeting could apply for Sect 153 Orders to have all Resolutions invalidated on the grounds that the procedures of the Strata Schemes Management Act were not complied with, and that those Resolutions would have been determined differently if those procedures were followed.
Maybe let your Strata Manager know about a possible Application for Orders if they’re less than forthcoming with a venue or if you can’t get the numbes between now and Thursday.
Your observations about the impacts of the leak possibly being exacerbated by the tenant below not promptly reporting merely strengthens your case for the Owners Corporation (O/C) to properly investigate and rectify the problem before its impacts on the Common Property, for which its responsible, worsen.
A couple of further observations.
An absence of O/C funds is something that’s within your control by raising it at the next AGM (even though Owners never want to increase levies), and whilst the O/C could with the support of ≥75% of Owners at an AGM create a Special By-Law (SBL) to limit its responsibility for maintain and repair Common Property, on the basis of its current approach to the leakage problem, clearly it has no such SBL; so don’t worry about By-Laws!
Inconvenience to you, further efforts by your O/C to shift responsibility to you, and ongoing delays can IF THEY CONTINUE be addressed by a process conducted by the NSW Civil and Administrative Tribunal and commencing with mediation that can be initiated by you with the NSW Office of Fair Trading.
OK…… I know that probably sounds like heavy stuff, but beleve me it’s not – particularly with the mediation process which can merely by its suggestion ecourage the Parties (in your case your O/C) to compromise.
Have a look HERE for details of the whole process and Application Forms.
The March has finished; lest we forget!
Your Plan is post 1974, so we can ignore one complication at least.
Regrettably, like any legislation, the NSW Strata Schemes Management Act contains few specifics and rather provides the principles upon which Strata Schemes are managed, and in your case those principles dictate that Owners Corporations (O/C) are responsible for the maintenance and repair of Common Property and Owners are responsible for that with regard to the area within their Lots.
So in your situation, an accepted interpretation of those principles (not just mine) would make the rectification of the leakage in the small pipe under the sink your responsibility as it’s within the cubic air-space of your Lot, and any confirmed leakage from the bath lip similarly your responsibility as, albeit original, the lip and any waterproofing behind it is against an internal wall of your Lot as opposed to a common wall.
However (there’s always at least one of those in Strata) in situations such as yours where water leakage from your Lot is affecting the Common Property and/or another Lot and it’s not from an obvious source within your Lot (such as a dishwasher hose) then it is customary, and indeed in the O/C’s best interests in terms of it preserving the integrity of its Common Property, for it to do whatever is necessary to determine the source of the leakage and to make necessary repairs, and then only if it’s confirmed as being from Lot property to at its discretion pass its costs of making the repairs to the Lot Owner. It’s much less common, and as you’ve found out messier, for O/Cs to do as yours has done by determining the source (reportedly) of the leakage and then encouraging the Lot Owner to directly arrange and pay for those repairs, especially with a different tradseperson.
Again in your situation, any damage that’s caused to your Lot (such as to wall tiles) as a consequence of the O/C determining the source of the leakage must be rectified by it; not by you as the Lot Owner.
It seems that your O/C was heading down the correct path until, albeit on the advice of its plumber, it determined that the source of the leakage was from within your Lot and you, with the benefit of hindsight, made the mistake to at that early stage engage your own tradespeople to repair the reported leak around the bath lip, which I’m guessing occurs because your shower is above the bath (?).
All of this merely confirms why you’re now in the situation you’re in; so what to do now?
I’d suggest you don’t contact the strata plumbers or their insurers (you didn’t engage them), but instead advise your O/C in writing that you’ve to date acted in good faith by accepting its advice concerning the source of the leakage, by accepting its offer to permit you to directly engage the services of tradespeople to rectify a problem that it had advised you was the source of the leakage, but that due to your concerns about the possible impacts of the on-going water leakage upon your Lot, the Lot below, and the Common Property from now on you’ll be relying upon the O/C to conduct whatever further investigations it deems necessary to properly identify the source of the leakage, and to permanently rectify that and all existing and any future damage that’s consequentially caused to your Lot.
I’d further advise your O/C that should it now determine that the source of the leakage is from anywhere other than the bath lip as it previously advised or if its investigative works adversely affect the works / warranty that you’ve paid for, then any further costs that it may resolve to pass-on to you will be adjusted before any payment to account for the amounts that you’ve already expended on the basis of that advice.
Probably not entirely the answer that you wanted, but at least you won’t be throwing any more money at a problem that your O/C should in the circumstances be chasing-down.
Whoisit – so as not to confuse you and to allow posters to provide considered replies, could you please advise:
1) The year in which your building was constructed;
2) Whether your bathroom is original (i.e. un-renovated since the completion of the building);
3) Whether the wall adjoining the bathtub is internal to your Unit or on a perimeter wall;
4) If the leakage into the Unit below continues.
You’d need to check the latest version, but I think that most of the amendments and additions arose from the impacts of cyclone yasi (Qld) as opposed to from any operational safety issues.
Also, when you’ve been involved with the review of Australian Standards (as I have), and considering the numbers of “interests” represented on the panel, it’s quite common for the numbers of additional clauses to be disproportionate to the extent of actual changes to the Standard.
In my opinion, the more important issue is with the apparent autonomy of your Plan’s Strata Manager; your O/C needs to do something about that at the next AGM.
Blueman – it sounds to me like a preferred contractor of your Strata Manager successfully touting for work, as the only relevant Australian Standard that I’m aware of is AS/NZS 4505:2012, and I think that relates more generally to design, construction, and installation on commercial/industrial sites than it does to safety specifically.
There are of course safety issues on all site-types that relate to impacts with objects (such as vehicles) and with manual override that are covered by auto-reversing, proximity sensors, and back-up power but so far as I’m aware those requirements would be addressed in Council guidelines, and where applicable by consents.
Try contacting your local Council for any current guideline requirements that they may have (carefully though so as not to invite site inspections), and more generally Standards Australia.
I assume that the contractor’s been paid? Mores the pity, as I’d be putting a motion to the next E/C Meeting to consider holding the Strata Manager responsible for that; if only to put the proverbial wind up him!
Personally, if you’re still in the cooling-off period I’d ask for an extension to permit you to commission Strata and Building Inspections to, amongst other things, ascertain the facts surrounding the issues as opposed to what the vendor’s agent believes to be the case.
If the vendor won’t agree to that, then I’d walk away because unless leaks, which may or may not be from a pipe, are in a common wall (i.e. on the unit’s perimeter) then rectification is the owners’ responsibility, similarly with the floorboards unless they’re original (i.e. with the building), I’m suspicious that 5 year old professionally completed renovations would have omitted waterproofing, and that any resident owner would not press for repairs; unless of course they’re an absent owner/landlord and/or been told that they’re responsible for all or some of those repairs.
Come back, if possible with some additional information, if you’re already committed to the purchase, because there are other options, albethey possibly less certain in terms of outcomes.
Now I’m confused too!
Your original post stated that an Executive Committee (E/C) meeting had been convened, that three (3) of the E/C Members including the Chair could attend, and that the two (2) remaining members being the Secretary and yourself could not attend.
Your last post (#10) reveals that your main concern is that the meeting will be hijacked by other Owners, but you’ve been advised (correctly) that these Owners have neither a vote on the item under discussion nor the right to speak unless invited to do so, and you’ve also been advised (again correctly) that in any case the item under discussion cannot be decided by the E/C.
The Strata Manager may have the role of Secretary delegated to them under the terms of their Agency Agreement with the Owners Corporation, but under the provisions of Sect 29(2) of the NSW Strata Schemes Management Act (SCMA) the Secretary can continue to exercise his/her functions, and under Sect 22(f) of the SCMA one of those (functions) is to convene meetings of the E/C and General Meetings of the O/C.
So as I get the feeling that you don’t want the Meeting to go ahead, and assuming that the E/C Secretary feels likewise, stopping the Meeting is best achieved by that person simply advising the Strata Manager in writing, with a copy to the Chair and other Members, that for a number of reasons, including that the item under discussion cannot be decided by the E/C, that they’re exercising their role under Sect 29(2) by instructing that Meeting is not to be held.
Note: Don’t provide the above instruction until a few days before the scheduled date for the E/C Meeting, as any two(2) E/C members can request the Secretary to convene another Meeting, and he/she then has only a little leeway in terms of time to prepare a new Agenda and to distribute that to Owners a minimum 72 hours before whatever Meeting date they’ve chosen and can attend.
If you’re in NSW, the E/C Meeting can go ahead provided half of the elected members are in attendance (in your case that’s 3), and any members who cannot attend, irrespective of what position/s they may hold, may with the consent of E/C appoint another owner to act and vote in their place at the Meeting.
BUT….. as KWP correctly states, the matter that your E/C wants to consider can only be decided by way of a Special Resolution (SR) at a General Meeting of the Owners Corporation (O/C), where for that SR to pass ≥75% of those in attendance both personally and by proxy would need to vote in favour, with that percentage being determined from the sum units of entitlement (UOE) of those in favour and the aggregate UOE of the Plan.
If the SR was properly passed, your O/C must either create and register a Special By-Law covering the Owner’s exclusive use of the common property for their driveway, or grant them a “licence” to use the common property for that purpose; both should contain conditions such as one mentioned by KWP (post #2; last para) to take account of the real value (to the owner) of the common property that they’ve “acquired”.
Papageno – I’m afraid that have a different interpretation; sorry to confuse.
When the budgets upon which levies are set are determined, they’re based on the actual expenditure for the preceding year and any anticipated additional expenditures in the coming year, and that’s why the Annual General Meeting (AGM) is the best venue for Owners Corporations (O/C) to make that determination.
I recognise that the above methodology is less accurate for the Sinking Fund, but that’s why the Sinking Fund Plan comes into play.
So as Clause 76 of the Strata Schemes Management Act (SCMA) prescribes that the amount of the Plan’s levies must be determined at the same meeting at which the budgets are set, and Clause 75 prescribes that those budgets must be set at each Annual General Meeting, I agree with your Strata Manager.
I appreciate why you and the other Owners would want their levies to be as low as possible, but I’d be more inclined to base those on past actuals and anticipated future expenditures, so it may be as well for you to use the time between now and the next AGM to take a closer look at that Sinking Fund Plan. There may be future expenditures required and shown in that Plan that will gobble-up what appears to be a current surplus.
All that said, KWP’s right in saying that your Strata Manager is contracted by the O/C, and in that regard it could instruct her to convene the EGM and, subject to a favourable resolution by those present, to adjust the sinking fund component of the levies…. but then Strata Managers are required to act in accordance with relevant laws, and as I said, in that regard I believe yours is right.
Marvin – after almost 4 years on this Forum and even allowing for the fact that people usually post only about their problems with Strata Managers, I’d still recommend to people in your situation (and even more generally) that your Owners Corporation (O/C) works on electing a pro-active Executive Committee (E/C), that those Members complete the on-line training course provided free by Strata Community Australia (SCA), that the O/C negotiates a “record keeping agreement” with its current Strata Manager to as the title implies look after the accounts / bill paying / meetings etc, with E/C taking immediate responsibility for the day-to-day management of its Plan with the medium-term objective of progressing that to total self-management.
If and when you’re ready for self-management, there are a few expert-assisted software programs out there in the clouds that could be of considerable assistance, one of which (but not the one linked) is being developed in collaboration with Jimmy T – the moderator and chief guru of FlatChat.
Apart from the money saved by not paying Strata Managers while at the same time ‘training’ them as many are too often kids with too many Plans to “manage”, with little prior training and with no ability to know that they don’t know (enough to seek guidance from their licensee; who does), and who’s key performance indicators are weighted too heavily towards the additional income gained for their Agency (and often shared) from billing disbursements, your O/C will quickly become the practical master of its own destiny.
Someone else may wish to recommend a Strata Manager that they’ve had a good run with (if whatever criteria they use to judge that suits your O/C’s circumstances), but frankly my Plan’s been happily and cost-effectively self-managing for so long now that I simply don’t know any well enough to do that.
No Strata Manager with multiple Plans to look after can possibly look after yours as well as a proactive E/C assisting the O/C with just one!