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You won’t be able to raise the issue at the AGM unless there’s a Motion on the Agenda to do so, and whilst I’d be pleased to draft something for you there’s no point if the Agenda has already been distributed.
So what about contacting your Strata Manager ASAP to find out if the sunshade has been approved, to confirm that the area where your neighbour parks is common property and, that if so, there’s no license or exclusive use by-law covering its use, and if it’s too late to add a Motion to the Agenda, – and then come back.
You’re in NSW right?
eurojim – what you’re proposing could be considered as erecting a new structure on the Common Property (roof and walls), and if that’s the position adopted by your Owners Corporation (O/C) then unless your Plan has a Registered Special By-Law covering that type of construction, then it’s not a matter for consideration by the Executive or Building Management Committees, but rather by all Owners present personally and by proxy at a General Meeting, where ≥75% would need to vote in favour.
The fact that the proposed pergola is on a terrace that’s part of your Lot may confuse how your O/C considers it, but instead of pre-empting how your O/C may or may not react, why not discuss everything with your neighbours prior to finalising your design.
Early discussions will give you the opportunity to explain your plans and to perhaps resolve any issues such as those that you raise with appearance etc, thus reducing the likelihood of opposing votes at the General Meeting if it comes to that, and/or of adverse submissions if consent is refused and you decide to take the matter to Mediation.
You seem inclined to approach this issue sensibly, and in that regard going ahead with your proposed pergola without the prior written consent of your O/C would be ill-advised in my opinion, particularly as your O/C could seek Interim Orders to halt construction, but moreso because IF you do approach things as I’ve suggested you would, again in my opinion, have excellent prospects to successfully overturn any refusal of consent by the O/C under Sect 140 of the NSW Strata Schemes Management Act which amongst other things states at Cl:1 that “an Adjudicator may order an owners corporation to consent to work proposed to be carried out by an owner if the Adjudicator considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following:
(a) alterations to common property directly affecting the owner’s lot”
That sounds very much like your situation to me!
Council involvement depends upon a number of factors, including the size of the pergola where structures <25m2 and <3m high are usually considered Complying Developments, but as your proposed location may be atypical you should personally make, or have your Architect make some discrete inquires with your local Council. Remember though, if Council requires a DA they won’t consider it without a letter of consent or of no objection (as applicable) from your O/C.
Ooops – sorry everyone!
I just checked our past Minutes and thankfully I did get it the right way around when, based on Peter’s past advice, our O/C resolved in 2009 not to create a “relationship” with the ATO by holding the solar array as “agent” for its Owners and to thereby maintain its position of not having any non-mutual income.
The O/C’s “total solar contribution” (gross) is shown on each quarterly electricity account, so I can easily show an annual amount per unit of entitlement in a note to each year’s Income & Expenditure Statement, explain how each Owner can calculate their share from the Levy Schedule to the Agenda, and advise that the resultant amount is regarded as Owners’ income for taxation purposes.
Good to see that you’re there Peter – the word “solar” always does it!!
Martyn – I doubt very much that you or your Owners Corporation (O/C) could use the provisions of a Special By-Law of the type discussed to take action against a Tenant / Owner / Agent for merely advertising a vacancy at their premises. In fact in the case of an Owner or their Managing (Rental) Agent advertising, that may be regarded as restricting an Owners’ ability to “deal” with their Lot; something that no By-Law is permitted to do.
As I understand your problem, the best (if not only) approach to preventing the overcrowding of Units within your Plan would be for your O/C to specially resolve to draft and Register a Special By-Law (SBL) of a type outlined in my previous post (#2). Just make sure that its rationale can be fully justified to withstand a challenge, and that’s best achieved by having an experienced Strata Lawyer such as the one who is a sponsor of this site to complete the draft.
In that way, once a Unit is known to be occupied by more adult persons than the SBL permits, and that shouldn’t be too difficult to determine, your Executive Committee or Strata Manager can issue the tenant/s with a Notice to Comply (with the By-Law), and to if necessary follow the NCAT’s procedures for the imposition of a fine should they not comply.
A few other points that may make your O/C’s management of this type of SBL a little easier……
1) The provisions of Sect 119 of the NSW Strata Schemes Management Act (SCMA) requires the Owner or their Managing Agent to provide the O/C with the names of all tenants (i.e. legal occupants) shown on a Tenancy Agreement, so your E/C will be aware of the names of the tenants for inclusion on any Notice to Comply; and,
2) Clause 35 of the Tenancy Agreement requires the Owner or their Managing Agent to provide a copy of all By-Laws and SBLs to the tenants within 7 days of a Rental Agreement commencing, so none of those could claim that they were unaware of a limitation on the maximum numbers of adult occupants permitted to reside at the premises; and,
3) There’s at least one legal precedent that I know of where the Owner of a Lot has been found equally liable for a breach of By-Laws by their tenant, in circumstances where the O/C had provided that Owner with a copy of the Notice to Comply as issued, and they then did nothing about addressing the breach with their tenant. That may encourage Owners to ensure that their tenants do comply with a SBL of the type suggested – and indeed any other.
RTNQ – I assume that you’re an Owner, that by “our responsibility” you mean the Owners Corporation’s responsibility, and that by “managing agent” you mean the Strata Manager engaged by and working for the Owners Corporation (O/C).
As the O/C’s relationship is with its Owners, and the Owners’ relationship is with their tenants, Luke’s advice (post #2) is absolutely correct and IF the Owner/Landlord is certain that it’s their current tenant that damaged the waste pipe, then it’s up to that Owner to recover their costs from that tenant just as they would if there was damage inside their Residence.
As it appears that this waste pipe is in a position that makes it liable to damage by vehicle/s, then the O/C should at its cost place a suitable protective barrier around it to prevent future damage.
Can the O/C demand that the Owner pays?
YES – remembering of course that whilst your Strata Manager is paid by the O/C to provide it with advice in the management of its Strata Scheme, in matters such as this they must act in accordance with the O/C’s instructions.
So the O/C (Secretary) should instruct the Strata Manager to obtain quote/s to have the waste pipe repaired, to send a copy of the preferred quote to the Owner, to engage the Contractor / Plumber to do the repairs and to install a suitable barrier, to pay the Contractor from the O/C’s funds, and to invoice the Owner for a reimbursement of the repair costs ONLY.
……… and typically for NSW, the not so simple answer is only after ≥75% of those present both personally and by proxy at a General Meeting vote YES, and with that percentage being determined from the total lot unit entitlement of those voting that way, divided by the aggregate unit entitlement for the Plan.
That’s a Special Resolution under the provisions of Sect 65A of the NSW Strata Schemes Management Act (1996) authorising the Owners Corporation (O/C) to add or erect a new structure (solar panels) on its Common Property.
KWP’s right about any feed-in tariff or expenditure off-set from gross or net metering being regarded as income, and the tidiest way of management that is for the O/C to hold the solar system in trust for all Owners, as in that way the annual income (in whatever form) can be apportioned to each in accordance with their lot’s units of entitlement, and be declared on the Income Tax Return of each Owner as may be appropriate.
DD – To expand just a little on Jimmy’s post, your building’s compliance with then relevant Building Codes would have been assessed at the time that the original Development Application (DA) was submitted to Council, at which whatever’s deemed necessary for all aspects of safety is listed on a Schedule of Essential Services. When the building is completed, and before the Certificate of Occupancy is issued, whoever it was that installed and tested everything on the Schedule submits an Installation Certificate to Council, and I think to NSW Fire & Rescue / Rural Fire Service.
Annually thereafter, a suitably qualified person is required to check all items shown on the Schedule, and certify that everything that’s required to be in place is, and that it’s all maintained and operating correctly. The Secretary or Strata Manager is required to co-sign that certification, to forward a copy to the Council and I’m fairly certain to the applicable Fire Authority, and to display a copy in a prominent location on the Common Property – such as near the entry foyer or on the O/C’s Notice Board.
So that copy will indicate to you (and others) what essential services for safety (incl. fire) are required to be in place and properly maintained on the Plan, with that only ever changing if the building is further developed or substantially modified such that another DA is submitted, or if a Fire Order is issued by Council or the Fire Authority requiring additional or upgraded services in line with current Codes.
As for the privately owned grassland, any fire controls or prevention measures in place would be the responsibility of NSW Fire & Rescue or the NSW Rural Fire Service depending upon your Plan’s location. So perhaps check with the closest Station.
The relevant legislation in NSW is the Strata Schemes Management Act (SCMA), and specifically Schedule 2 where the procedure for conducting General Meetings is prescribed.
With regard to the proxies, the SCMA requires that at the commencement of the Meeting and if requested to do so, the Chairman must announce the names of those persons who are present and entitled to vote, and where that entitlement is by way of a proxy, the name of the person to whom that proxy’s been granted. Personally, I’ve never attended or Chaired a Meeting where that hasn’t happened, by request or otherwise!
Whilst the SCMA doesn’t have any specific requirements for the form of the Minutes of General Meetings, both custom and practice and Company Law would require those to be a “true and accurate record of proceedings”, and therefore they would amongst other things need to show the names and Lot numbers of all persons who attended both personally and by proxy and were entitled to vote at the Meeting. Again, I’ve never seen General Meeting Minutes where attendance hasn’t been shown in that ay!
As for the Strata Manager’s use of those proxies, the SCMA prohibits their use in that way if their vote on an Item of the Agenda would result in a “material benefit” to the Strata Manager – examples include an extension to the term of their Agency Agreement with the Owners Corporation or an increase to their management fee as contained in the budget.
As an observation, this sounds to me like yet another example of the “tail wagging the dog”, where the Strata Manager has forgotten that they’re engaged by the Owners Corporation to assist with its management of its Strata Plan, not to take over that management.
If you need any assistance with your “challenge” then perhaps read THIS page from the NSW Office of Fair Trading in the first instance, and maybe come back to FlatChat for clarifications or past experiences with similar situations.
Martyn asked….. Is it illegal for a tenant (or their agents) to advertise over occupancy and/or would a by-law to that effect hold any validity?
To the extent that a Residential Tenancy Agreement (NSW) must show all persons residing at the premises as tenants, and requires those tenants to not permit any additional persons to reside there; YES it would be illegal for a tenant to advertise for additional occupants unless the Owner / Landlord agreed.
In terms of possible over-occupancy, for reasons including fire safety (exiting), vehicular parking, the possible overuse of common facilities, and anything else that could be justified an Owners Corporation (O/C) could validly determine and Register a Special By-Law limiting the maximum numbers of adult persons permitted to occupy any Lot, typically to a number equal to twice the numbers of bedrooms.
Compliance with a Tenancy Agreement is regulated by the NSW Office of Fair Trading and the NSW Civil and Administrative Tribunal (NCAT) but regrettably an O/C is not a “person” entitled to lodge a Complaint about breaches of those Agreements, however compliance with any Registered By-Law is enforceable by an O/C through the NCAT (incorporating the former Consumer, Trader, and Tenancy Tribunal).
xpose – I assume that by your use of the term “strata” you mean your Plan’s Strata Manager, who works for you and the other Owners of Lots in your Plan!
As Strata Managers take their instructions from the Executive Committee it seems to me that your Strata Manager is either doing things autonomously (?) or there’s someone else on your Committee from whom they’re taking those instructions (?).
You and your Committee need to get that under control in the first instance!
With regard to the visitors’ parking spaces, the differences on the Plans between what’s been provided by the Strata Manager and what you’ve obtained from Council may be because the Strata Manager’s been making amendments to match the unauthorised changes that they’ve made on the ground.
I’d be inclined to accept Council’s version, but I’d recommend you contact NSW Land & Property Information (L&PI), formally the Land Titles Office, and purchase a copy of the Registered Strata Plan for verification.
Whilst your Owners Corporation could, by a specially resolution at a General Meeting, alter its Common Property by sub-dividing a visitors’ carspace, a physical change of that type should have been noted on the Registered Strata Plan; so check that.
As for the use of the visitors’ carspaces, depending upon the date that your Strata Plan was Registered, you’ll be bound by one of two Model By-Laws of relevance and contained in Schedules to the NSW Strata Schemes Management Act (1996) or the Regulation (2010), both of which typically state:
An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the written approval of the owners corporation.
So if owners and occupiers (tenants) of a lot cannot park on the common property, of which visitors’ carspaces are part, then it stands to reason that the habitual use of one of those by a tenant is a breach of By-Laws and of Council’s Development Approval which requires an O/C to keep all designated visitors’ carspaces available for that purpose.
Dave B’s post #2 sets out how your O/C can manage this, and your Strata Manager will be aware of how the issue of a formal Notice to Comply (with a By-Law) can be authorised; generally following a resolution of the E/C or under delegated authority to the Strata Manager under their Agreement with the O/C – check which applies.
Non-compliance leads to the imposing of a $550 fine by the NSW Civil and Administrative Tribunal (NCAT), and again your Strata Manager will know how to escalate the matter to that level once they’ve been instructed by your E/C to do so.
Now for the obstructing of access to your property. There’s another Model By-Law stating:
An owner or occupier of a lot must not obstruct lawful use of common property by any person.
So as you need to use the Common Property (divided carspace) to access your property, and you cannot, then what the Strata Manager has done with or without instruction from their Client (the E/C on behalf of the O/C) has resulted in a breach of that By-Law by whoever then parks there.
What can be done?
1) Have the Notice to Comply issued to the habitual parker.
2) Once you and/or the E/C has ascertained the correct layout of the Common Property as shown on the Registered Strata Plan, then instruct your Plan’s Strata Manager to ensure that all physical characteristics on-the-ground mirrors that.
There are a few other “complications” that I’ve omitted, such as whether your O/C needed to formally adopt the Model By-Laws or if it was automatically covered by them by its Registration date, but the scenarios that I’ve given are those most likely applicable and your L&PI inquiries will clarify and resolve them.
The Strata Management Agency Agreement that your Owners Corporation (O/C) has with the Strata Manager will almost certainly delegate to them the duties of the Secretary, whose role it is to convene Annual General Meetings (AGM).
Sorry for quoting the relevant legal positions, but they lead to your options:
1) That no matter that delegation, under the provisions of the NSW Strata Schemes Management Act (SCMA) the O/C always remains the “principal manager”, and the Secretary remains in that role; and….
2) Under the provisions of Schedule 2 Cl. 31(a) of the SCMA, AGMs must be held on a date not earlier than one month before and not later than one month after each anniversary of your Plan’s first (ever) AGM.
So whilst it’s reasonable for your Strata Manager to delay calling for Motions, preparing the Agenda, and convening the AGM while she gets the financial and other paperwork in order, as you’ll see the above provisions of the SCMA place limitations around the extent of that delay unless the Strata Manager has obtained an Order from the NSW Civil and Administrative Tribunal to vary the date – and I somehow doubt that’s occurred.
I think you’ll find that it’s simply a matter of conflicting priorities for your Strata Manager, who may well have AGMs to convene for other Plans, so a short note (e-mail) to her from your Executive Committee Secretary to reinforce the requirements of the SCMA with regard to the timeframe for convening the next AGM, and a suggestion that the Secretary will set the date if it’s likely that those requirements won’t be complied with should get the ball rolling.
Remember though, if the Secretary steps-in and convenes the AGM they’ll also have to prepare the Agenda and take / distribute the Minutes; not such a chore though if other Owners in attendance at the Meeting can assist.
leif – the O/C of which you’re a part by the way, CAN decide to remove the sound-blocking feature, and even to not maintain something at all provided ≥75% of those owners who bother to attend an AGM vote to do so, but ONLY if that doesn’t affect the security of the building, the structure of the building, the appearance of the building, or the appearance (and possibly therefore the value) of any Unit within it.
So NO, I’m afraid that a properly made decision to do that doesn’t require your approval, BUT you can have your say and vote (against) at the AGM, and seek the assistance of the NCAT to overturn any decision that wasn’t properly made (i.e. by Special Resolution) and to ensure that items of Common Property like the entrance lights, garden lights, and door locks are properly maintained.
It’s a pity that there apparently aren’t enough Owners who feel as you do, and who are prepared to either attend the AGM or to give you their vote by proxy so that the votes of your Committee and their friends can be overcome. That’s not unusual though, and more’s the pity.
I don’t know how you can think that nothing can be achieved by insisting that the rules are adhered to and that further actions are a waste of every body’s time when you haven’t as yet tried what I and others have suggested!
You still have a couple of choices:
1) Write to your Strata Manager and E/C Secretary to demand that they comply with Sect 62(1) and (2) of the SCMA by properly maintaining items such as the lighting and door locks, and to advise them that if they don’t do so, then you’ll be seeking the assistance of the NCAT to ensure that they do, and;
that if they decided to not maintain anything that affects the security of the building, then you’ll also ask the NCAT to overturn that decision as it breaches Sect 62(3)(b)
OR
2) sell your Unit at a reduced profit and let somebody else worry about all this.
Sorry, but this topic has just about been flogged to death in my opinion, and I don’t think that I for one can assist you any further; good luck with whatever you decide to do.
Not guilty Your Honour. Of all the unconscionable things to suggest – I find with the utmost respect that they are far-fetched and fanciful suggestions; pure puffery in my humble opinion.
How’s that…. better?
leif – I think one of us is confusing what’s prescribed under Sect 62 with what it is that your O/C and Strata Manager have decided to do, or more correctly not to do.
As I understood your posts, the O/C didn’t Specially Resolve anything to do with changing, altering, or not maintaining the Common Property; they’ve just decided on a course of action, at best by a simple majority vote at an E/C Meeting, and then implemented it!
So as a Special Resolution was not taken at the General Meeting and it should have been, you have the option to seek the assistance of the NSW Civil and Administrative Tribunal (NCAT) to require your O/C to either convene another General Meeting to put a Special Resolution to the vote in order to alter, change, and/or not to maintain certain items of its Common Property (locks, lights etc) or to get on with properly maintaining that Common Property in accordance with Sect 62(1).
A Special Resolution does not require a unanimous vote to pass.
Similarly, if your O/C then succeeds in passing a Special Resolution to not maintain certain items of its Common Property and that decision would affect the safety of the building, then you can again seek the assistance of the NCAT to overturn that decision under Sect 62(3b).
As for the NCAT process, yes you’re correct in your conclusion that an arbitrator would need to be convinced that any decision of your O/C not to maintain its Common Property had an affect the safety of the building, but then from what you’ve described in your posts that shouldn’t be too difficult for you to prove.
I think you need to get on with it – you never know, the Strata Manager and E/C may concede as soon as they receive your written request for the Common Property to be properly maintained, and you may not need the assistance of the NCAT at all .
leif – with regard to all maintenance items that you’ve written to the Strata Manager about, you need to follow-up in writing to advise that under Sect 62 of the NSW Strata Schemes Management Act the Owners Corporation (O/C) has an absolute responsibility to property maintain the Common Property (door locks, garden lights), and that if they don’t do that within 14 days you’ll be lodging an Application for Adjudication Orders to the NSW Civil and Administrative Tribunal (NCAT) in an effort to compel them to do so.
Neither the Strata Manager nor the Executive Committee can authorise changes to the Common Property, and whilst I doubt that a swapping door locking mechanisms from key lockable to latching only would constitute a “change”, the removal of door locks altogether IS a matter that can only be decided by the O/C at a General Meeting, where ≥75% (not 100%) of those in attendance would need to agree.
I believe that the matter of the fire doors and stairs is relevant, not only to the security of the building but also to the correct operation of the emergency fire exit system, where as your building was constructed in 1971 the requirements of Ordinance 70 of the NSW Local Government Act (1919) would have required all the fire doors to be self-closing and latched (not locked) to exclude draughts, and for the O/C to do whatever is necessary to ensure that the stairs are kept unobstructed.
Clearly, the consequences of the changes that the Strata Manager has (improperly) arranged to the fire doors could permit a draught to be created within the stairwell thereby allowing any fire to more easily spread to/between individual levels, and allow the people who now gain access to “camp” there and obstruct safe passage – and as Jimmy pointed none of that will matter to anyone until there’s a fire that spreads more quickly due to open fire doors and fleeing residents’ access is obstructed.
I’m loathe to suggest that you involve Council, but as you’ve apparently made an approach already, I think you need to follow that up in writing to request that their Officers undertake an inspection of the fire stairs and the entry / egress doors to access compliance with whatever standards applied at the time that the building’s original Certificate of Occupancy was issued, and to convey that information to the O/C in the form of a Fire Safety Order.
As an Owner, compliance with any Council Order will cost you also (via your Levy Contributions), but I guess that’s the price of safety and security!