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clement – I know that I’ve twice suggested paying the builder but I wouldn’t suggest doing so and then taking the matter to the Department of Fair Trading (DOFT), as on the basis of my past experience they’re under resourced to do anything other than conduct a desk-top investigation of the matter in dispute, whereupon it becomes an unprovable they said / we said situation where as the work’s been completed, apparently in accordance with the Strata Manager’s scope-of-work (?), the O/C would likely loose.
At the end of the day it was the Strata Manager who engaged the builder and apparently on some basis defined their scope-of-work, and it’s their responsibility to pay their invoice from your O/C’s funds with its prior authorisation which was as you’ve advised, in the absence of further information, formally refused before any works were even commenced.
Furthermore, was the $4.5K investigation either approved by the E/C or a function under which the Strata Manager had full authority under the terms of their Agency Agreement with the O/C?
It’s almost time to try the shock-and-awe approach with your Strata Manager, where despite the backside covering terms of Strata Management Agency Agreements whereby to the best of my recollection the Strata Manager is indemnified (my term) from fault except in the case of fraud, I’d still be inclined to inform them that in the absence of a brokered solution that’s acceptable to the E/C, then the O/C will:
1) Lodge an Application for Mediation of the matter by a Community Justice Centre
2) Ascertain whether they’re members of Strata Community Australia (SCA) as the peak industry body, and that if they are members (most reputable Agents are) then it will lodge a Complaint with the SCA.
3) Lodge a Complaint against them with the DOFT under the provisions of the NSW Property, Stock, and Business Agents’ Act (2002) by completing THIS.
Again, as a matter of interest what was the nature of the problem and its consequences in the rental unit?
PS – I just thought of a last resort approach (#4), where Strata Management Agency Agreements typically include termination provisions, that from the O/C’s perspective my be formally initiated where the Strata Manager is considered to be in breach of their obligations, and fails to remedy that within with 30 days. Your O/C would however need to carefully read its copy of the Agreement and have a new Strata Manager on standby just in case.
Whale, 1415hrs 11/06
clement – YES it does, and the fact that the Strata Manager referred the matter to the Executive Committee (E/C) makes me wonder if that’s actually a requirement under their Agency Agreement with the Owners Corporation (O/C); again, you should check that document and if necessary review the Strata Manager’s authority.
After taking over the management of our Plan after many years of it utilising the services of a Strata Manager I initially found it difficult to find tradespeople who would undertake maintenance and repairs, primarily it eventuated because they hadn’t previously been paid in a timely manner, and had additionally been embroiled in discussions between the O/C and the Strata Manager about what each understood to be the scope-of-work.
The latter is similar to your situation, and that’s why your E/C should in my opinion at least advise the builder about the reasons for its delayed authorisation of their invoice, then if possible quickly ascertain who it was that specified the ineffective scope-of-work, and should ideally then have the Strata Manager, who presumably issued the original Work Order, negotiate and document a solution with the builder that may involve further works, and a reimbursement to the O/C by the Strata Manager for those completed thus far.
The lesson here is for the E/C to in future ensure that quotations from tradespeople specify and price their proposed scope of work, and after the approval of the E/C where required, to ensure that Work Orders then issued by the Strata manager include that same specification or at least include the preamble “in accordance with your quoted scope of work ….”.
Good luck with sorting this out, and remember that bad news among the trades community travels fast and that future quotations for works at your Plan my include a hidden loading to account for possible “contingencies”.
clement – the bottom line is that the Owners Corporation is responsible for paying the builder, and should do so without delay as they’re the proverbial meat in the sandwich.
Once that’s been done, the Executive Committee needs to ascertain what the problem was, and whether or not the Owners Corporation was actually responsible for the repairs; you’ll find some useful information regarding that as produced by NSW Land & Property Information HERE.
I raise the above issue, as Property Managers (Rental Agents) are adept at ingratiating themselves to their landlord/clients by allocating every conceivable maintenance and repair issue within strata properties to the Owners Corporation, where some Strata Managers aren’t sufficiently skilled to determine who is actually responsible and so take the least line of resistance.
Then the Executive Committee (E/C) needs to closely examine the Agency Agreement between the Owners Corporation and the Strata Manager, where one of its Schedules will describe the various functions that the Strata Manager is to undertake, and for each of those whether they have full authority or authority with limitations, such as to approve works up to a maximum value and/or to obtain the approval of the E/C before arranging those.
If the Strata Manager is found to have exceeded their authority, then they’re liable to reimburse the Owners Corporation’s payment to the builder, and if they’ve acted within their authority but the E/C is collectively of the opinion that it needs to be tightened-up, then the E/C may on behalf of the Owners Corporation (O/C) formally amend or rescind its delegation to the Strata Manager for specific functions, remembering of course that decisions on rescinded delegations revert to the E/C or the O/C (depending upon the matter at hand) and need to be formally documented in the Agency Agreement at its next nominated review date after vote to do so on a Motion t the Owners at a General Meeting (e.g. an A.G.M.)
hans said….. I can’t work out what the consequences of agreeing to his demands will be for me and the other owners.
There are a range of issues that need to be properly addressed when owners wish to renovate their lots in N.S.W. Schemes, so to provide a fuller response could you please provide some details about the scope of your proposals, and about what the Chairman’s demands were?
I was initially confused about the link between a “sink” and a “cistern cock’ but it seems that the sink was in the bathroom as opposed to in your property’s kitchen, where those flexible / braided hoses that many plumbers use with gay abandon are regularly problematic, particularly on hotwater services.
The first thing that you could do is to have a plumber replace all flexible / braided hoses within your property with annealed copper tubing with flared connections, and then as PeterC suggested (post #2) approach your Owners Corporation (secretary or strata manager) about its installation of isolation valves on the common water supply to every Lot in the Plan.
Depending upon the reaction, you may need to submit a Motion for inclusion on the Agenda for the next General Meeting in order to have the matter more widely discussed and voted upon, where owners might consider the inconvenience and other impacts of the water supply to the entire building being turned-off on every occasion that plumbing work is necessary within a Lot.
The plumber’s report that the fault in your lot arose for works earlier undertaken somewhere else on the property may well support your Motion, but I wouldn’t be inclined to also rely upon that to seek a reimbursement of your costs by the Owners Corporation (O/C).
Why?
In part because PeterC is correct concerning the demarcation of responsibility between you and the O/C, further due to the long established convention that Owners are responsible for the maintenance and repair of any service (e.g. water & electricity) that’s physically within their lot, and the failure rate of those flexible / braided hoses irrespective of any other works being undertaken in the building.
John – the current NSW Legislation is the Strata Schemes Management Act (SSMA) that was made law in 1996 and so predates your Plan’s special by-law, that as I understand from your post (#1) allows for the installation of an intercom system by owners, not as an exclusive use arrangement as your topic title suggests, but rather as a permitted change / addition to the common property of the Owners Corporation (O/C) under the provisions of Sect 65A of the SSMA.
If my interpretation of the basis of your Plan’s special by-law is correct, then your observation about the requisite prior written agreement of affected owners to its provisions regarding the on-going maintenance of the intercom system is also correct, where Cl.4 of Sect 656A 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.“
In the absence of owners’ written agreement above, then the O/C remains responsible for the ongoing maintenance and repair of the intercom system’s “backbone” from the handset/s to the main access panel.
The lawyers may disagree, but on the assumption that you wish to resolve this matter, I am of the opinion that rather than doing so by amending the special by-law by way of a special resolution at a General Meeting just to included words such as “owners by their written agreement will be responsible for on-going maintenance etc etc” and by then including that collective agreement as a supplement to the amendment, it would be tidier and just as effective for the relevant owners to make that formal agreement after the fact, to submit that document to the next meeting of the Executive Committee, for the existence of that document to be recorded in the Minutes, and for it to be then held by the Strata Manager with the other documents of the O/C.
PJ – thanks for your response, and YES the end of my second para (post #2) should have read “remains lot property”; now corrected, sorry.
You’re also correct in your assessment that a special by-law resolved by your Owners Corporation in this situation is subordinate to the provisions of the Strata Schemes Development Act, and cannot impose upon the Owners Corporation any responsibility for maintenance of lot property unless that work is done under the terms Sect 63 of the Strata Schemes Management Act (SSMA); that is at cost to the lot owners concerned.
When you state that the motion to register the special by-law was decided by “a majority” of those present and entitled to vote at the applicable General Meeting, was that as required ≥75% in favour by unit entitlement?
If not, then that would give affected owners further grounds to seek Orders invalidating the resolution under Sect 153 of the SSMA.
You wouldn’t be precluded from voting unless that’s a term of settlement, but only if you’re confident that the requisite special resolution will pass with you abstaining, then if nothing else it might be a good look in my opinion if you do so.
PJ – whilst an Owners Corporation can effectively “transfer” (by license or by an exclusive use privilege) a component of its common property to an owner, and in the latter case can, with an owner’s concurrence, additionally transfer its maintenance and repair responsibilities for that property to that owner by way of a special by-law, I don’t believe that the opposite can apply whereby an owner’s property is transferred to an Owners Corporation.
In the absence of a strata sub-division the original Strata Title Plan does, as you correctly state, define areas of common property and lot property, and whilst an Owners Corporation may resolve by a simple majority vote at a General Meeting to maintain and repair an item of lot property, that item nonetheless remains lot property (corrected 27/05).
Whilst I can see some rationale for such a “transfer” of maintenance and repair responsibilities (e.g. an owner’s self-interest), I’m intrigued by the terms of the special by-law that enabled that and how it came about that owners passed the requisite special resolution; can you enlighten me?
Pamster said….. At an EGM in October 2015 a resolution was made with the votes of the majority of the owners that a By-law relating to the installation of Air Conditioning be drafted and registered.
I don’t wish to complicate the issue, but a “majority vote” isn’t good enough in this instance unless it’s at least a 75% majority as calculated from the collective units of entitlement (UOE) of those voting in favour of the by-law, and the aggregate UOE of all those voting at the Meeting (i.e. a “poll vote”).
In order to wrap this up, perhaps you can you clarify this issue together with the one raised by Scotty in the last post (#4) regarding payment for registering the by-law.
Hello008 said…….Strata is responsible for the maintenance of external roller doors.
The above is generally correct in your 40 year old building, but Registration of the Plan referred in post #1 predates N.S.W legislative changes that became effective on 1 July 1974, where prior to that date walls fronting balconies and everything within them such as sliding doors and windows was the responsibility of the Lot Owner.
I’ve used the services of a specialist family opersted business called “Only Rollers” (metro Sydney based), so after perusing their website at http://www.onlyrollers.com.au pehaps give them a call.
Just one point of clarification Casuarina.
The calculation to determine the outcome of voting for a special resolution is on the basis of the numbers of votes cast by those present at the meeting both in person and by proxy, expressed as a percentage of the aggregate units of entitlement (UOE) of only their lots; not the aggregate for the entire Scheme.
So if your Scheme’s absent owner declines to nominate a proxy or abstains from voting altogether, then as the other owners would hold 100% of the aggregate UOE for the meeting, a vote in favour by each of them would result in a unanimous resolution; not 76% in favour of the special resolution as you believe.
In my experience that subtle difference can mean a lot should the resultant Special By-Law ever be subject to challenge.
You know me too well Jimmy, and as usual you’re correct!!
So….it’s just that like after spending like almost 20% of my adult life studying at Universities at a time when a person could like actually fail, and then in my “mature years” completing a TAFE Cert IV in Property Services (Operations) so that I could concurrently learn more about how to better manage our Plan and keep my brain alive, and then subsequently using most of what I’d learnt in a number of real jobs over more than three (3) decades, I readily admit that I’m just a little obsessive (make that neurotic) about the value of a credible, and well-rounded education; one that’s both academically and practically derived.
*You’ll note also that I’m aware of (and annoyed by) the current vernacular where every conversation and notation must start with “so”, and where every few words must include the obligatory “like”.
So…..that said, I’ll now get off my educational and grammatical hobby-horses and get ready to re-mount the Flat Chat express!
This “course” may be sufficient for Strata Committees who want to learn more about how their Schemes are supposed to operate, but I have a couple of comments otherwise.
Firstly, throughout my working life I learnt that nothing’s free, and so I’m guessing that the Government has provided TAFE NSW with funding to cover the costs of providing the so called “course”, and as the only money that Governments have comes from direct and indirect taxes, that means we’re all paying.
Secondly, I’m continually amazed by the number of issues raised on this Forum concerning matters about which a properly educated Strata Manager should have been aware, and about matters where incorrect advice has been given by a Strata Manager who should know better.
Well now I know one of the answers……
If a person can complete a Government funded 3 day exam-free “course” and be then eligible for Registration as a Strata Manager, then even though they’re supposed to be working under the supervision of a fully licensed person, I’m afraid that the Department of Fair Trading is contributing to the further diminution of educational standards in NSW, in this case to the detriment of strata dwellers!