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G’day Roo – I could have called it the clink, pokey, joint, hoosegow, nick, slammer, big-house, pen, tank, cooler, or even jail, but I guess I’m showing my age by continuing to use the adopted ‘strayian way to describe where I may end up after using electronic voting (EV) for our AGM – post our achievement of a quorum.
On a more serious note, I still favour Scallywag‘s summary of the benefits, after all EV may at least encourage inclusivity and it would cut the legs off the proxy farmers; both good outcomes in my opinion.
I’ll let you all know how widely it’s accepted.
I know that the Act (in NSW) is silent on the subject, but I’ve already setup an on-line vote as a trial for our upcoming AGM using some US-based Software that has all the bells-and-whistles, including pre-allocated IDs (names from the Strata Roll), system generated passwords, and even weighted voting (poll voting to us).
There’s no fee for up to 10 individual voters, and that’s almost enough for me to cover the Owners in our Plan who currently take no interest in anything, including General Meetings.
I’m inclined to the view that provided a quorum is achieved then on-line votes, where at least Owners have the ability to concurrently read and vote on each Motion, is a better option than a Proxy “in the form prescribed” and a far better option than a Proxy of the “farmed” variety.
One of the Motions will be used to determine if our Owners favour on-line voting, and I wonder if those votes could in future be used at Meetings that have had to be re-convened, and where Proxies don’t count, or whether I’ll finish up in the CTTT Gaol for doing things this way?
Levy payments may be discounted, but in NSW that’s only permissible for Owners’ early payment of their contributions and it’s limited to 10%.
The malaise that you describe is one of the biggest hurdles that Owners Corporations face, and whilst there’s no guarantee, a Motion (in bold) on the Meeting Agenda to increase Levies by 100% may get Owners’ attention!
On a more serious note, if the Meeting’s adjourned due to the lack of a quorum, then 30 minutes after the listed commencement time for the re-convened Meeting, those few Owners with sufficient interest to attend can have their way.
So I don’t see why the lack of interest by the majority is an impediment to the committed few such as your friends to then ensure that their Plan’s property operated, unless the Strata Manager holds sufficient proxies to determine otherwise; but why would a professional Strata Manager do that?
Sig – whilst tenants can be evicted for non-compliance with By-Laws (a condition of NSW Tenancy Agreements) those proceedings must be brought before the Tenancy Division of the CTTT by “persons” entitled to do so; Owner/Landlords and their Agents.
Until such time as the State Government implements that aspect of my Submission to its Strata Review
an Owners Corporation is not a “person” in the Tenancy Division of the CTTT, and its options to address behaviours such as those raised in your post are limited the ones you mention AND to draw in Managing Agents and absent Owner/Landlords by copying all correspondence to them, and by reminding them that there’s at least one precedent (in NSW) where a Local Court held the Owner/Landlord legally responsible for their tenant’s noisy behaviour. Struggs – yes they could and probably would if they regard the Owners Corporation (O/C) as an easier target than their “client”, but I’d be equally concerned about the contractors’ responsibility and/or that of your esteemed neighbour if some damage is caused to the Common Property or to the personal property of Residents.
What happens if the contractors cut a water pipe that services more than just the Lot that they’re working on, or if they’re maneuvering an item of equipment and it impacts a resident’s vehicle or the window of a Lot?
I have this battle every time one of my Proprietors renovates their Lot, where I insist on them seeking the Owners Corporation’s consent, using licensed and insured contractors, and if they’re intent on using their handyperson mates, then I want to see a their Owner Builder Contractors’ Insurance beforehand.
I try to be reasonable particularly if the works proposed are minor, and I admit that I don’t insist on a Special Resolution AND a Special By-Law on every occasion, but if they won’t meet me half-way and then start works that could in the slightest way compromise the O/C, then I seek Interim Orders for a cessation of works.
It’s just not worth the risk, and furthermore I know that when something goes pear-shaped I’ll all of a sudden be their best mate, who they’ll all be looking at to help sort it out!
No way ……. get onto your E/C and Strata Manager and insist that they get the mess under their control; right now!
@Dudley said:Re: raising these issues at the AGM.
Should I communicate my wish to discuss these issues and request that they be listed on the agenda or just raise them when the motion requesting that the financial statement be approved is raised?
My advice is that provided you have enough time to submit the issues you wish to raise in the form of a Motion on the Agenda of your AGM, then that’s the best way forward as it provides both your Executive Committee and Strata Manager with the notice necessary to prepare themselves by bringing appropriate information to the Meeting.
Otherwise, you’re likely to get the “I’ll take that Motion on notice, and get back to you” response.
Now back to the broader issue of an O/C’s tax liability, I’m not an accountant, but my interpretation of the Commissioner’s Ruling IT2505 is that in NSW where the Common Property is held in the name of the Owners Corporation (O/C) as “agent” for the Proprietors:
- Levies paid (to both Funds) are covered by the principle of mutuality, where the ATO does not regard those amounts as income
- Interest received, and Fees charged by the O/C for things such as preparing S108 Certificates are accessible income in the hands of the O/C, and liable to tax at the Company Rate (30%)
- The costs of managing the Plan, such as the SM Fee, Bank Fees etc are deductions for the O/C
- Income received by the O/C from the use of its Common Property, such as from a solar feed-in tariff, and from the rent or use of commercial areas in a mixed-use plan, off-sets an amount that would otherwise need to be paid by Proprietors (via Levies), and so those amounts are taxable in the hands of those Proprietors in proportion to the Units of Entitlement of their Lots.
Anything more (or at odds with my interpretation) from posters with more relevant expertise?
@Dudley said:
Our AGM is due shortly and I have some questions that I would like to raise at the Meeting.I agree with everything that has been said, but note that your questions will need to be directly to do with Motions on the Meeting Agenda, for example when the Motion to receive the financial statements is tabled, it’s then that you can raise questions about the income received from interest.
In NSW there can be no non-specific Items on the Agenda such as “General Business”, although discussions of that type including general questions may occur after the conclusion of the Meeting provided no resolutions are taken that would involve the Owners Corporation doing anything about any issues then discussed.
As none of our Lawyers has posted (as yet), I’ll offer a bush-lawyer’s comment, and that’s that you’re spot-on Erin!
The Arborist should have availed themselves of the Dial before you Dig service as opposed to their meaningless disclaimer, but that said as Telsta has used authorised contractors (and their sub-contractors) for so long, their Cable Plans are known to be very much advisory.
Telstra probably does have the right to lodge an ambit claim against the Arborist, but it certainly has none against your Owners Corporation.
I’d strongly recommend that your Owners Corporations keeps up the dialogue with Telstra, because as your Strata Plan (and its residents) are the recipients of the services provided by their cable, any debt-recovery “incentives” that they may employ could affect those residents as the innocent third parties.
Gerrymando – it sounds to me like your Plan is facing precisely the same conundrum that ours faced 8 years ago, where as JGOWI suggests we resolved to amend our Agency Agreement to the extent that our then Strata Managers were engaged to oversee all activities at our Plan as if they themselves were paying the bills.
Well in summary, we paid for a Rolls Royce and our Strata Managers delivered a pushbike!
There were too many problems to list here, but suffice to say that many of those were of the same types as your Plan now experiences, and additionally, we found out that we were paying a premium price to the Strata Manager’s “Preferred Contractors” to offset the payment that they themselves were required to make to the Strata Managers in order to be on that preferred list, and to account for the Strata Mangers’ inability to meet their payment terms.
In my experience, and I know I’m generalising, the quality of the training that Strata Managers receive has been compromised by the fact both their initial assessments of competency and the nature of their professional development can be delivered and assessed by Registered Training Organisations that are often industry- based, and where in too many instances everyone who pays the fee, and turns-up, passes!
Whilst I don’t think that poor training and development leads to deliberate incompetence, in my opinion it does lead to ill-prepared people being loaded-up with a large portfolio in circumstances where they simply don’t know that they don’t know (what they’re doing), and therefore don’t seek assistance from their more experienced Licensee, and lead their Clients down the proverbial garden path.
Our Plan’s path lead to self-management where our Executive Committee (and particularly it’s hard-working Secretary / Treasurer
) DO manage it as if every dollar spent was coming out of the pockets of the individual Members, as if every plant and blade of grass was in their individual front yards, and every light was on their individual front balconies. I’d venture to say that NO Strata Manager with a portfolio could manage a Plan as well as a committed E/C with one, so if you and your E/C wants to pull the reins as tightly as you’ve indicated, then it might as well bite the bit and manage the Plan itself on the O/C’s behalf.
JGOWI – It’s been a while since I’ve seen a Strata Management Agency Agreement (and I’m not likely to any time soon), but I’m almost certain that it’s customary for Strata Mangers (S/M) to be delegated to issue Notices to Comply (NTC) and to attend the CTTT.
I think you’re right though, in that the former does need an instruction from the Secretary of the Executive Committee (E/C), and with the later, whilst the S/M can be delegated to prepare and lodge the paperwork necessary for Fair Trading and CTTT proceedings by the Owners Corporation (in whose name the NTC would be issued), I also recall that the S/M needs be accompanied to any mediation / adjudication sessions by a representative of the Owners Corporation; and I don’t see why that couldn’t be henrietta provided the E/C agrees.
It’s clear therefore that henrietta would need to get her E/C’s support to implement those “extra steps”, particularly as the S/M will be entitled to charge an additional “fee-for-service”, and so in that regard it would be a good idea for her to enlist the support of other Owners who are similarly affected by the noisy tenant.
Thank’s for setting me straight JGOWI.
tabs – as you’ve inadvertently backed yourself into a corner, all you can now do is minimise your costs by doing as KiwiPaul suggested, and ensure that the wording of the proposed Special By-Law (SBL) is kept simple (in plain english), straight forward, and to the point of what’s required at least for your Lot, and if you can include whatever’s appropriate for other Owners, all the better.
Your Strata Manager and Executive Committee may wish to engage the services of a Strata Lawyer to prepare and register the SBL, but in my opinion that’s not necessary for such as straight-forward matter, particularly as the costs of the DIY approach that’s been suggested amount to $102 for lodgement and registration of the SBL on your Plan’s Strata Title by NSW Land & Property Information (incorporating the former Land Titles Office) using THIS form.
I don’t claim “guru” status with regard to this, but my opinion is that Executive Committe and General Meetings would be classified as private, and that the Listening Devices Act would prohibit the use of recording devices if that’s the position that the Chair wishes to take, AND those in attendance and entitled to vote agree.
OK …. I know what’s required and why under Sect 65(A) and please regulars, don’t faint in shock, but….
from a logical and common sense perspective, I can’t see the point in putting a Motion for a Special Resolution before the next General Meeting of tabs’ Plan, just so a Special By-Law can be drafted and registered to retrospectively consent to such a minor renovation (in the broader scheme of things) and thereby make all on-going maintenance and repairs of the renovated areas the responsibility of tabs and future Proprietors of that Lot, as opposed to the Owners Corporation (O/C).
In tabs‘ example, there’s enough case law, precident, guidelines, and common practice to substantiate any future decision of the O/C not to maintain anything other than the original tiles in the Lot.
So I’ll stick my neck out and advise that tabs does nothing.
The responsibility for ensuring that a shared ventilation system (that is one servicing more than one Lot) performs as intended, that is as a air movement system not a odour transfer system, is that of your Owners Corporation.
So I’d suggest that you make that point in writing to your Plan’s Strata Manager (copy your Exec. Committee Sec. and your tenant), and request that that they have THEIR ventilation system inspected with a view to identifying how it’s designed to be operated, which may be with Lot fans ON, and if there is a fault, rectifying it.
CC – the other sides to the matter may be if the renovations you discussed with the Owners Corporation’s contractor, and which it appears they’ve documented and provided to your Strata Manager, will include a new / renovated kitchen, then you wouldn’t expect your sinking fund to pay for that, and if the same situation arose in a stand-alone house then you’d likely have no option other than to stick it out during the repairs or perhaps to stay with a relative or friend.