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If you’re in NSW (?)…..then Cl.98-1(a) of the NSW Strata Schemes Management Act (1996) states that the Strata Roll must include “the Owner’s Name and an Australian address (my emphasis) for service of notices or the name of the Owner’s Agent appointed in accordance with Part 3 of Chapter 4 and the Agent’s Australian address for service of notices”.
So as the Unit is under the management of a local Agent, your Owners Corporation (O/C) should write to its overseas Owner to request that, in accordance with the (State) Law, they nominate that person as their Agent for the service of notices.
If that nomination is not made, then I think that your O/C could obtain a Court Order allowing it to substitute the Owner’s details with those of their Australian Agent, and then if payment is still not made your O/C should be able to take debt recovery proceedings against that Agent, or even garnishee the rent proceeds.
I imagine that with the increasing numbers of overseas (investor) Owners of Strata properties, if there’s not an easier way to overcome the problems you raise, then there should be!
Mojo – glad that you’re on track for the resolution of your problems.
By the way, there’s nothing sinister in the ‘Termination of Periodic Tenancy Without Reason’ as that’s just the legal terminology used in the RTA to cover situations where the “premises is being destroyed or wholly or partly uninhabitable, or ceasing to be legally usable as a residence” – and that’s the situation in your case.
Don’t be a victim – it’s time to move on; good luck.
The Strata Manager is advising that as the glass tinting was added (by you) some time after the date that the Owners Corporation’s (O/C) glass door and panels were originally installed, and as the O/C is only required to replace items such as those to their original state, that’s minus the glass tinting.
That’s a hard-line approach but under the provisions of the (NSW) Strata Schemes Management Act it’s correct, unless of course you originally sought and obtained the consent of your O/C to “alter or change” their Common Property by fitting the glass tinting to their glass door and panels.
I’m guessing that you didn’t obtain the O/C’s consent, but if it’s any consolation at all you’re no worse off as any consent would typically include conditions requiring you and subsequent owners of your Lot to be be responsible for all on-going maintenance, repairs, and replacements of the tinting, and as a worst case for the glass door and panels themselves.
So you’re probably in front, but before you consider new tinting, I’d suggest that you seek your O/C’s consent to the installation of that in advance, and try to negotiate some better conditions such as some shared cost should the O/C again need to maintain or repair its Common Property.
Mojo – your landlord is required to ensure that the premises is habitable, and under any definition they’re not, the Council has intervened, and in those circumstances your landlord can issue an immediate termination notice.
I assume that is what has happened, and in those circumstances I can’t help wondering why you’re still there and paying rent!
I know that finding short-term or alternate rental premises won’t be easy, and you may have to impose upon friends for a while, but you have been issued with the termination notice, and it’s in your best interests to move out now!
If the landlord attempts to take any of your Bond, on the assumption that its been deposited with the Rental Bond Board, make sure that you contact them to advise a forwarding address so you can be advised of any cash-grab by the landlord and respond to that by explaining how your departure came about.
I’m not surprised at Fair Trading’s response, but Tenants NSW is usually very helpful; maybe they weren’t aware of all the facts so contact them again, personally if possible.
Whatever happens, stop paying rent and move out yesterday!
I’m not usually a conspiracy theorist, but it is possible that a building report or even the pre-purchase and pre-settlement inspection/s that the new owners must have themselves undertaken could (and possibly did) identify the modifications to the balcony railing?
Is is also possible that the new owners weren’t concerned about those modifications because they knew that the cost of remedial works to correct them would be picked-up by the Owners Corporation?
Whilst vortigern hasn’t said which party raised the issue of the remedial works post the sale of the affected unit, it would in my opinion be worthwhile for the Executive Committee and/or the Strata Manager to write to the new owners and ask when and how they first became aware.
How does the Owners Corporation (O/C) know that there wasn’t some financial adjustment between the parties at settlement?
Whilst I agree that at the end of the day the O/C is responsible, it’s worth it asking some pertinent questions before agreeing to pay for the remedial works involved.
SAM just to clarify – as Jimmy said, the first hurdle for any grant of Exclusive Use is for ≥75% of Owners present either personally or by proxy at a General Meeting of the Owners Corporation to vote in favour, and where that percentage has to be calculated from the cumulative unit entitlements of those Owners / the aggregate unit entitlement for your Plan.
So actually, the answer to your question is NO, neither the Executive Committee nor the Strata Manager can grant permission for exclusive use.
Dudley – I agree that your chance of success would be marginal, but with regard to where the Owners Corporation’s funds may be deposited, Sect 74(1) of the NSW Strata Schemes Management Act (1996) states that “an owners corporation must pay any amounts that are received by it and are not otherwise invested in accordance with this Act into an account established in a financial institution in the name of the owners corporation.”
So it’s entirely up to your Owners Corporation, although there is a list of “deposit taking institutions” that are from time-to-time approved by the NSW Office of Fair Trading as being suitable for holding trust account funds, and that may provide you with a justifiable short list (HERE).
The short answer is YES.
BUT … how easy that is depends upon whether any future noise annoyance is due to the flooring itself or the activities of the residents themselves, and the wording of your E/C’s consent including any conditions. Perhaps arrange to have a look at that consent.
Either way, (in NSW) you may have to seek the assistance of the Office of Fair Trading and the Consumer, Trader, and Tenancy Tribunal in order to require an Owner to return their Lot to its pre-renovation state; let’s hope it doesn’t come to that.
OK; that’s why I asked.
Jeremy – Firstly, the Owners Corporation (O/C) is responsible absolutely for rectifying all damage caused during the process of it making repairs, alterations, or changes to its Common Property (the windows).
Secondly, it was the O/C (and not you) who delegated its responsibility to the Builder, through an engagement that should have incorporated a scope of works and specified conditions such as the Builder holding public liability and indemnity insurance, which all comprised a “contract” between those parties.
So it’s the responsibility of the O/C, and the Executive Committee as its representatives to get the consequent damage that you’ve referred to repaired, and if that means it taking-up the matter with the Builder, engaging another Builder, or lodging a claim on the first Builder’s Insurance then so be it!
Before anyone offers opinions about how best to proceed, could you advise how the E/C “explained that they would repair any damage to the window surrounds and sills caused by the work”; in writing or verbally? How was the Resolution of the O/C minuted that approved the window replacements; was there a mention of consequent damage?
Thanks Dech – I sometimes think that I try too hard in my efforts to make our General Meeting Agendas comprehensive and informative, in part to avoid problems of the type that you’ve referred to in your post.
A preamble to every Motion and copies of all job specs. resulted in an 18 page Agenda last year, and this year’s is heading in the same direction!
The on-line electronic voting software that I’m going to use allows for attachments to each Motion (like the financial statements, quotes, job specs etc), so I’m hopeful that those of my Proprietors who never attend despite the free BBQ, and never submit a Proxy, will read the hard-copy Agenda and the paperless attachments to the on-line software, and PARTICIPATE!
I’d be interested to receive some FlatChat about the legality of what I’m doing, in circumstances where on-line votes would only be used if a quorum was achieved at the Meeting in accordance with the Act.
If this doesn’t get a significant response, I’m back to that dummy motion to double the Contributions
‘Just’ – l know that the wording of the current Act requires a deal of interpretation, but I was coming from the angle that if the planter box is fee standing, then the E/C wouldn’t be altering or changing any areas of the Common Property by removing it.
If on the other hand it’s fastened to the floor or to a wall and the E/C or the Owners Corporation (O/C) for that matter wants to remove it, relocate it, or make it bigger/smaller, then S65A would apply in each of those scenarios.
For Welly’s info., in NSW S65A is a section of the Act that deals with changing or altering Common Property. If necessary in your case, that action requires a Special Resolution of the Owners Corporation where at least 75% of those Owners present at General Meeting both personally and by proxy need to be in favour of the Motion, with that percentage determined from the unit entitlements of those Owners ÷ the aggregate unit entitlements for the Strata Plan.
Welly – it’s possible that the other two owners could have come up with some really convincing arguments that may have resulted in a different decision about the planter box, but they weren’t there to put their points of view because that wasn’t a Motion on the Meeting Agenda.
That’s why (in NSW) there’s no General Business permitted on the Agenda for General Meetings, and I’m afraid that your Strata Manager’s advice is correct.
If you want the planter box removed, then put that as a Motion on the Agenda for your Plan’s next General Meeting, or provided it’s not in any way fixed to the Common Property, then request your Executive Committee to consider it as a formal Motion on a published Agenda for their next Meeting.
Dudley… a couple of quick (but not short) answers by way of extracts from the (NSW) Strata Schemes Management Act (1996) with my emphases in red.
In answer to your first question, (b) below is compulsory and the audit (d) is optional, depending upon whether or not those in attendance at the AGM see a need for some procedural checking of the financial statements (e.g. for completeness and layout):
34. Notice of an Annual General Meeting must:
(a) be accompanied by a copy of the last financial statements prepared by the owners corporation together with any relevant auditor’s report, and
(b) include a form of motion for adoption of those financial statements, and
(c) include the information referred to in section 98 (2) (d) in relation to each current insurance policy held by the owners corporation, and
(d) include a form of motion to consider the appointment of an auditor and the taking out of insurance of the kind referred to in section 88 (2) if insurance of that kind has not already been taken out, and
(e) include a form of motion for the election of the executive committee, and
(f) include a form of motion to decide the number of members of the executive committee, and
(g) include a form of motion to decide if any matter or type of matter is to be determined only by the owners corporation in general meeting.
and re your second question, you’ll need to get any Motions to the Secretary of your Executive Committee (cc Strata Manager) before the Agenda is finalised:
36 Requisition for Motion to be included on Agenda for General Meeting
(1) Any person entitled to vote at a general meeting of an owners corporation on a motion that does not require a unanimous resolution may, by notice in writing served on the secretary of the executive committee, require inclusion in the agenda of the next general meeting of the owners corporation of a motion set out in the notice and the secretary must comply with the notice.
(2) The secretary must give effect to the requirement of the notice.
(3) Subclause (1) does not require the inclusion of a motion on the agenda of a general meeting for which notices have already been given in accordance with this Schedule but in that case the motion must be included in the agenda of the next general meeting after that.
As you’ve stated that the mould has developed during the recent cold weather, I’ll assume that it’s presence or likelihood wasn’t noted on your incoming Condition Report.
That being the case, your Landlord has to maintain their premises in “reasonable repair” (NSW Residential Tenancies Act), and whilst you must ensure that you do nothing to make the situation worse, that doesn’t extend to operating a dehumidifier!
You have a couple of choices.
The first is to end your tenancy, and the second is to again approach your Landlord via the Property Manager (Rental Agent), this time in writing to politely demand that they commence the repairs identified by the building inspectors within a reasonable timeframe; say 7 days given the time that the issue has been known to them.
Keep records of everything written and stated verbally, because if nothing positive occurs within your requested timeframe, your next action (in NSW) is to seek Orders from the Consumer, Trader, and Tenancy Tribunal compelling your Landlord to make the repairs.
IF it comes to that, I advise you to first contact your local State/Territory Tenants’ Advisory/Advocacy Group; 02 9698 5975 in Sydney or http://www.tenants.org.au Statewide.