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If your matter is of relevance to your neighbour’s current problem, then sure give him the details, but otherwise don’t as it will likely confuse.
That’s why, just like with the Strata Scheme itself, you’re almost always better of by self-managing – where the matters that you raise can all be included as “additional agreed terms” in a Residential Tenancy Agreement, be acknowledged up-front therein by both you and your tenant, and in that way there should be no discussions or excuses about not knowing or about you claiming all or part of the Bond to rectify damage caused.
Answering your last question first, any suggestion (and I’m not saying you are) that the Owners Corporation would be responsible for the damage, even in the unlikely event that a random rodent had entered your Unit and caused it, is like suggesting that the owner of a next door house would be similarly responsible if we were talking about stand-alone properties.
Secondly as it appears the leak was quite substantial, I assume it was the water inlet hose that caused the problem, where as it’s under mains pressure and usually made of durable rubber with swaged fittings, bursting is quite common.
By all means inform your Strata Manager as it’s likely that all the dishwashers were similarly installed, but I’d be pursuing the Builder to make their own inquiries with the technician, and to inspect the hose themselves.
I have a feeling though that those involved will duck-shove the problem (and you) around, until such time as you tire of chasing them and do what I’d do right now – advise your contents insurer about the burst pipe, of cause unknown, and of a possible claim for the consequent damage.
Whilst I don’t know how common it is, Sect 25 of the NSW Strata Schemes Management Act (1996) makes provision for a payment of the type that you describe to be made retrospectively; that is for the “time & effort” of an Executive Committee Member since the last AGM.
So there’s no precedent, and as for whether the payment is justified in your case, your Owners Corporation needs to take into consideration if the costs of your Plan’s Strata/Building Manager have been reduced as a consequence of its Secretary’s efforts; clearly somebody thinks they have.
The Unit may only be sub-let by a Tenant with the prior written consent of the Owner, who may require an Agreement with the Sub-Tenant.
If the Owners will not do anything about the unauthorised sub-letting of their Units, then ask your Strata Manager to write to the Managing (Rental) Agents on behalf of the Owners Corporation (O/C), pointing out that the head tenant/s are in breach of their Lease Agreement.
A Special By-Law to prevent sub-letting would be difficult (if not impossible), BUT if overcrowding is also an issue, then your Owners Corporation could by Special Resolution at a General Meeting create and Register a Special By-Law to limit the numbers of adult people who can occupy any Unit. To be sustainable and enforceable that number should be based upon something known, such as the numbers and sizes of bedrooms.
stratatart (and interesting handle) – It’s a matter of assessing whether the costs and effort of off-loading your Owners Corporation’s “maintenance headache” can off-set the long-term benefit, but here’s a precis of the procedure:
- All Owners need to agree to the proposal via a unanimous resolution at a General Meeting.
- A Registered Valuer then needs to determine the value of the lap-pool, its fixtures and fittings, the surrounding area, then calculate a revised unit entitlement (U/E) and therefore levy contribution for now more expansive Lot, and incorporate that into a revised Aggregate U/E for the Plan – recognising that the U/E of other Lots may also require some concurrent amendments.
- A Registered Surveyor then needs to prepare a Plan of Strata Sub Division showing the reduction to the Common Property and the extent of new (more expansive) Lot.
- The Valuer’s Report and the Surveyor’s Plan then needs to be submitted to NSW Land & Property Information (incorporating the former Land Titles Office) for Registration of the changes to the Common Property, to the Owner’s Lot, and to update the Strata Title Plan to reflect all of that.
As I said, your O/C and the benefiting Lot Owner needs to weigh-up the costs and the longer-term benefits of the proposal, recognising that those costs should at least be shared equally between the parties.
KP – that’s not quite right as exemptions to Clause 80D were given by Regulation (2010), where in the absence of any imposed limitations on expenditure by the Executive Committee, funds can be spent on legal action or advice to a maximum $1,000 per Lot or $12,500 which ever is lower, OR up up to an amount formally given by the provider of the advice in accordance with the NSW Legal Profession Act (2004).
None of this diminishes the value of the opinions previously given by Scotty and you that Cappy’s O/C should either renegotiate the terms of the proposed sale of Common Property, or if its progressed too far seek Orders to invalidate the original decision of the O/C that authorised it.
……..and as Clause 5.7 of the standard form of Strata Management Agency Agreement states:
If the agreement is terminated the agent must, within 7 days after payment by the owners corporation to the agent of all outstanding amounts, make available at the agent’s office for collection by the owners corporation records, keys and other property of the owners corporation in the possession of the agent ;
then you should also contact Strata Community Australia (SCA) – the phone number for their NSW Chapter is 02 9492 8200. They’re the peak industry body, so ascertain whether your Strata Manager is a Member (most are), and if so lodge this form with them.
If your Strata Manager is not a Member and SCA’s complaints process can’t therefore be used, then rattle Fair Trading’s cage once again because they can (and should) take disciplinary action against him under Sect 192 of the NSW Property, Stock and Business Agents Act (2002) as he’s very definitely in breach of that Act on any number of these grounds.
With regard to the validity of the Proxies, paragraph 3 on the prescribed Form is intended overcome situations where a number of absent owners have routinely given their proxies to the Strata Manager, who cannot then exercise those on a vote for which he/she would “derive a pecuniary or other material benefit” unless a voting instruction is given at that paragraph – such as where that vote is to appoint them or to extend their Agency Agreement.
Clearly that’s not the case where the vote is to remove the Strata Manager (no benefit there!), so in my opinion any lack of instruction by absent Owners at paragraph 3 would not invalidate their Proxies in your circumstance; although it matters not as a simple majority vote is all that’s required to terminate the Agency Agreement.
That’s the line that this (not so) Mighty Cetacian was taking, although I agree with Scotty that the SCMA could be clearer – because even a better use of punctuation and syntax wouldn’t help on this occasion.
I don’t know what State or Territory you’re in, but as you’re talking about an evaporative cooler (roof mounted?) I assume that your Plan is not on the eastern or western seaboards.
Some details on location would be helpful, but in the meantime, your Plan’s Executive Committee cannot “make up rules” as that’s a matter for all Owners to agree upon at a General Meeting, and as your your past experience with consent to keep an animal pet had demonstrated your Strata Manager’s apparent inability to provide timely responses, it was probably unwise of you to assume that a similarly slow response to your request to install the evaporative cooler could be taken as a consent.
It’s generally accepted that an Owners Corporation’s (O/C) consent to an Owner’s request to place something on the Common Property ( in your case the roof) should be unreasonably withheld, but I’m not sure that telling the O/C to “take a hike” is a smart move.
Again, not knowing your Plan’s location makes specific advice difficult, but what about a letter to your Strata Manager pointing out that the Executive Committee’s delayed response inferred to you that there were no issues with your proposal, and that you’d appreciate its consent to your existing installation, or failing that its reasons for wanting the unit relocated to the rear of the building’s roof.
We both probably know why the rear location is desirable as the unit would be out of sight, but it’s worth you asking the question and depending upon the answer, perhaps asking the O/C to assist in the relocation costs on the basis of the time that it originally took to respond to your request.
Thanks JGOWI, that’s a provision that I’ve never had to use, therefore didn’t know about, and another bit of potential good news for Cappy!
Cappy – unit entitlements cannot be used to detetmine a quorum, but the SCMA does mandate Special Resolutions (and votes by unit entitlement) in specific circumstances including for voting on changes and additions to the Common Property of the Plan, creating Special By-Laws, and for revoking exclusive use privelages. Incidentally, it also mandates a unanimous vote on any motion to wind-up the Plan.
In terms of the Agenda for General Meetings, Special Resolutions must be called for (and be “flagged”) where mandated under the Act (refer above), and Ordinary Resolutions (simple majority / one vote, one value) otherwise, so your Strata Manager is acting appropriately if they’re preparing Agendas in that way.
However there is one useful provision of the Act that’s particularly relevant in circumstances such as exists in your Plan with its spread of unit entitlements, and that’s a “poll vote” where a majority of votes by lot unit entitlement determines the outcome (ie 51% determines the outcome).
In that situation, it is where permitted usual for a vote on an Item to be taken by an Ordinary Resolution (i.e. one vote / one value) and if the outcome is considered for any reason to be inappropriate by any one Owner, then that Owner can call for a “poll vote” on that same Item where the votes by those Owners whose Lots have the highest units of entitlement hold sway.
Cappy said: would the lot owner’s 4 votes be included in the 75% you mentioned in your previous response
YES I’m afraid so, but a saving grace may be that the vote on a Special Resolution is not by a simple majority, but by lot unit entitlement where that ≥75% in favour is calculated from the lot unit entitlement of those entitled to vote (and voting) divided by the aggregate lot unit entitlement.
If there’s something contentious about the renovations proposed, then you had better do a bit of lobbying amongst like-minded Proprietors in n effort to convince them attend the General Meeting or to grant you their proxies; not necessarily to oppose the works but perhaps to place conditions upon them that overcome whatever it is that you’re concerned about.
mofo – thanks for the additional information.
Regarding the privileges additionally granted under the Special By-Law (SBL) providing exclusive use of the rooftop area to your neighbours, as the NSW Strata Schemes Management Act (1996) and the NSW Environmental Planning & Assessment Act (1979) are both legally “superior” to the SBL, your neighbours will need the written consent of both your Owners Corporation and the Local Council before those privileges may be exercised.
What if the proposed balustrades were 3m high and coloured fluorescent orange?
Well…. that’s why Sect 65A of the NSW Strata Schemes Management Act (SCMA) requires works of the types proposed to be consented by way of a special resolution at a General Meeting of the Owners Corporation (not by the Executive Committee), where notwithstanding the special privileges, a vote in favour by ≥75% of those Owners in attendance (both personally and by proxy) would be required in order for the motion accepting the detail of your neighbour’s Development Application (DA) to pass.
If consent is then given, the Owners Corporation places its Common Seal on your neighbour’s Development Application (DA) in order to affirm that the requirements of the SCMA have been complied with, and it’s only then that Council will consider the DA.
So you have two (2) opportunities for input – one at the General Meeting and the second after the DA is lodged with Council, where in the former case you may wish to seek the prior support of other Residents, and in the latter case you must advise Council with prior notice of your interest and of your desire to comment just in case they regard the matter as a complying development.
adrian – before I drop-off and give others a go at this topic, it’s all about Owners Corporations (i.e. all Proprietors) ensuring that due diligence is applied by taking every reasonable precaution to protect the health and safety of all residents and others (e.g. workers) who could be put at risk whilst on their Common Property.
Remembering of course that “workers” means those directly employed by the Owners Corporation (O/C), and that the Common Property of an entirely residential Scheme is not a “workplace” under the NSW Work Health & Safety Act (WH&S).
The initiatives of some Strata Managers around work health and safety about which I’ve already commented are in my opinion more about covering their collective backsides (with those of their O/C Clients).
As for any impacts on insurance coverage, our Insurer won’t provide any premium discount to account for the fact that our totally residential Scheme has been “duly diligent” by its E/C Members undertaking a comprehensive Audit and Risk Analysis every year since 2008 and by progressively rectifying everything identified, and they’ve never asked about or queried risk minimisation – but then we’ve only ever had three (3) claims and all prior to 2011.