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KiwiPaul – Slightly off the original topic, and apart from the fact that a leaking pipe (as opposed to a burst one) is not claimable on building insurance, are you saying that in Queensland an owner could undertake renovations of the types you mentioned to common areas within their Lot without first seeking and obtaining the consent of the Owners Corporation (O/C)?
Thanks for the feedback, but remember that even if you did snip the wires at the wall, repairs would still be your responsibility if that wall was internal; that is one dividing rooms.
I agree with Jimmy’s comments about the disadvantages, and would add that notwithstanding those I don’t believe that such a Special By-Law (SBL) would withstand legal scrutiny in NSW.
I appreciate that home to rest‘s Owners Corporation (O/C) is not proposing that common property windows not be maintained at all, but rather just not maintained by it, however Sect 62 (3) of the NSW Strata Schemes Management Act (SCMA) only permits an O/C to make that decision where it “will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.”
As Jimmy observes, a breach of the the above clause may well be a consequence of the O/C’s proposed SBL, especially as the wording of that clause is will not… (as opposed to “may” or “might”), and the fact that a note to that clause specifically flags the ability of an Adjudicator to review any SBL of the type proposed.
Further, the proposed amendments to the SCMA that make the O/C responsible for fitting and maintaining locks on bedroom windows above the first level of the building “irrespective of any By-Laws in place” represents yet another complication to the operation of the proposed SBL.
I agree…..it’s a bad idea!
Struggs, it sounds to me like the note that you were given doesn’t meet the requirements of the “Notice” that’s required to be given under the NSW Pesticides Regulation 2009 (see link in Scotty’s post #3), and that alone could lead to a max $44,000 fine against the Owners Corporation!
However as your post mentions that the contractors were “cleaning” (common property?) it’s unlikely that activity would be covered by the Regulation but it’s indeed possible for caustic cleaning products to adversely affect plants.
I’m not sure about holding your Executive Committee (E/C) responsible for giving inadequate notice; after all what’s adequate notice in these possibly un-regulated circumstances?
However your E/C and/or the Strata Manager (S/M) is responsible for ensuring that the cleaning contractors were properly insured (e.g. public liability), so firstly approach them (E/C and/or S/M) in order to inform them of the damage and to ascertain the details of insurance coverage.
The activities of the contractors resulted in the water ingress to your townhouse and the subsequent damage to your property (photos?), so in my opinion the chain of liability goes to the contractors in the first instance, to their insurers if they have one, and to the E/C and/or the S/M if they didn’t engage the services of a properly licensed (?) and insured contractor.
Secondly, I’d get in touch the contractors as they’ve requested to in the first instance ascertain what chemicals they’ve used, secondly to inform them of the damage that their past activities have caused, and lastly to obtain some assurances about how they’ll ensure that no further damage occurs if you allow them access to your courtyard.
With regard to some people observing that a direct debit is a bad idea, that may be because it’s an arrangement between the respective banks, not in your case between the real estate agency and you, and when things go pear-shaped it’s up to the banks to resolve the issue, and often in their own sweet time!
As a personal example, the only direct debit arrangement that I ever had was with an insurance company, and when I cancelled the policy to change insurers the direct debit didn’t cancel. Consequently I was paying for both policies for four (4) months until the banks solved the glitch in their system/s that was preventing cancellation of the direct debit.
No problem getting a refund of the payments, but it was a totally frustrating experience because even though it was my money, there was nothing that I could do to stop insurance company #1 from taking it.
Jimmy may have missed your last post (he only has a dozen or so to “administer” every day
), but the abuse and personal attacks you’re again referring to was the basis of my suggestion that you turn-up the invective; subtle intimidation actually!In response though, you could certainly call for a “point of order” but so far as I’m aware the minutes of General Meetings are covered by the same rules as those of Executive Committee Meetings, where those only need to record decisions on agenda motions and on any correspondence given to its secretary prior to the Meeting.
When I first read Ancestor’s post and his comments that the executive committee considered his communication “offensive and embarrassing”, I suspected their allegation was that he’d beached Model By-Law 6 which states:
An owner or occupier of a lot when on common property must be adequately clothed and must not use language or behave in a manner likely to cause offence or embarrassment (my emphasis) to the owner or occupier of another lot or to any person lawfully using common property.
I too am curious so I’ll be interested to read his response, but I hope he had his clothes on when he communicated with the committee.
On behalf of KiwiPaul, Scotty, Jimmy T and me….thanks for the feedback; sounds like a good result!
CCB, whilst the NSW Strata Schemes Management Act (SCMA) does include some provisions about meeting procedures and about some mandatory motions, it’s silent on details such as those about providing supporting documents and on the other issues that you’ve raised, so I’m not sure about the value of legal or more expert advice.
In consideration of this discussion and that following your other post about items to be placed on the Agenda for your upcoming AGM (e.g. for solar), even though it’s something that I don’t usually (if ever) advocate I think the time’s come for a boots-and-all approach.
Clearly your Strata Manager has forgotten who he’s working for and about the provisions of the rules of conduct that apply to him under the NSW Property, Stock, and Business Agents Regulation (Sch 1), and about the ability for owners such as you to seek remedies against him and your Executive Committee for unprofessional behaviours, improperly conducted Meetings, and for subsequent resolutions improperly taken (e.g. without adequate supportive documents).
So in addition to what’s been advised about you proposing on-the-day that certain motions on the Agenda be amended, where I’m of the opinion that one to adjourn the debate is best, you should print, complete, and place conspicuously in front of you at the Meeting an Application for Orders to invalidate certain resolutions under Sect 153 of the SCMA, and a Complaint Form against the Strata Manager and the Licensee (if the Strata Manager is an employee) under Sect.32 of the NSW Property, Stock, and Business Agents Act.
Right now….send a further e-mail to the Strata Manager advising that you’ve documented all past approaches (personal and in writing) to the Chairman and him, and what you WILL do immediately following the Meeting with regard to both the Executive Committee, him, and his Licensee if in your opinion that’s improperly conducted, and seek some firm support from like-minded owners, either personally or by their proxies, at the Meeting.
What I’ve proposed is a bit of a bluff, but be prepared to lodge the papers if thing’s don’t proceed as as they should; you’ve nothing to loose and everything to gain about ensuring propriety!
Felix – should the Chairman refuse to conduct a vote by those personally present prior to the commencement of the procedural part of the Meeting, whilst still permitting the absent owner to actively participate in that Meeting as opposed to just observing, then owners should advise the Chairman that the subsequent Meeting procedure would not comply with Schedule 2 Sect 12(2) and 22 (1) & (2) of the NSW Strata Schemes Management Act (1996) and they’ll be applying for Orders under Sect 153 to invalidate any resolutions then taken at that Meeting.
As a point of compromise, I’d also inform the Chairman that if a Motion to accept electronic technologies as a means to facilitate owner participation is put as a Motion on the Agenda for the next General Meeting, then you and other owners would of course be prepared to consider it in the context of then current Legislation (there may be new strata laws by then).
In the event that there’s no compromise, I’m not a great fan of the adjudication process particularly and as Sect 153 gives an Adjudicator a number of reasons to refuse Orders, such as where a non-compliance with the Act “did not adversely affect any person”, or where that “would not have resulted in a failure to pass the resolution..”. So unless those “outs” are negated by whatever eventuates at the Meeting I’d be somewhat skeptical about your success with that approach… except for the fact that the Skyper is the Secretary.
The prime role of the Secretary is “to prepare and distribute minutes of Meetings of the owners corporation….” (Sect 22), so unless the Skyper requests that role to be delegated for the Meeting and that’s accepted by those present, then the physical absence of the Secretary may carry some weight with an Adjudicator; after all it’s difficult enough to take accurate minutes when the taker’s personally present, but when they’re on Skype…!
In NSW, the Act refers to a quorum being determined from those people present at the Meeting, either personally or by duly appointed proxy, and for electronic technologies being (only) used to submit proxies and other documents to the Meeting.
So in response to your questions, I’d say that the Chairman could call for an agreement to the use of Skype from those personally present prior to calling the Meeting to Order, but not from proxies as they apply to only to the proceedings of the Meeting. I’m of the opinion though that irrespective of what may be decided prior to the commencement of the Meeting, a strict interpretation of the Act would preclude the use of Skype except for person/s to observe the proceedings.
All that said, why would you not accept a Motion proposing a slightly lenient interpretation of an Act that’s 17 years old, if that meant that Skype or similar “newer” technologies could be the means to facilitate more Owners’ participation?
Clause 76(4) of the NSW Strata Schemes Management Act (1996) is the relevant reference, where it states:
“(4) If the owners corporation is subsequently faced with other expenses it cannot at once meet from either fund, it must levy on each owner a contribution to the administrative fund, determined at a general meeting of the owners corporation, in order to meet the expenses.”
K.P. – I too noticed HarbourView’s earlier mention of the townhouse owners already being granted approval (by the O/C) to install a door in an external wall (of the Lot?), and as post #7 states that’s been done “with permission, but not by special resolution or bylaws” it also needs to be rolled-into a Motion for the O/C to consider legally consenting to that as well as the proposed garden area by way of a Special Resolution (SR).
As I mentioned before, a Special By-Law (consequent to a SR) is legally required in NSW only where, in addition to its consent to any changes or additions by an owner of a Lot, the O/C wishes to make that owner and subsequent owners of that Lot responsible for the on-going maintenance, repair, and replacement of those consented changes or additions, and entirely at its discretion to also grant that owner exclusive use privileges.
A Special By-Law (SBL) can stipulate how the consented works may be used, how they must be maintained (with costs reimbursed to the O/C if it has that done concurrently with grounds), and in fact anything else that the O/C regards as relevant….. but without it the O/C is responsible for all on-going maintenance etc by default.
A SBL can be rescinded or amended by way of a Special Resolution, and only if it incorporates an exclusive use privilege does the beneficiary (of that privilege) need to consent; otherwise as you’ve advised the privilege is perpetual.
So as you might guess ever the bureaucrat, I’m standing by my previous comments also; I only hope that this final post by me on the topic assists rather than confuses HarbourView.
I cant’t help wondering where HarbourView’s Strata Manager is in all this, and how many more significant issues they’ve let pass?
Strictly speaking, as the location of the problem is with the wiring behind the switch and before it enters the wall cavity, it’s within the air space of your Unit and in NSW that could be considered your problem.
However I’ll ignore that grey (or in your case green) area, and advise that unless your Plan has a Special By-Law dealing with the issue (as mine does), then all wiring that’s on or within an internal wall of your Unit (e.g. those separating rooms) is your responsibility, and all wiring within a perimeter (outer) wall or above the ceiling of your Unit is the Owners Corporation’s responsibility.
PS – just noticed I’ve jumped excathedra’s post; I’ll have to type faster!
Jan, I don’t make a habit of doing this but as your Plan’s in such as mess and as it’s obviously stressing you out….
On the basis of the last few posts and your advice that a General Meeting is to be held on 3 May 2013, I’d suggest you have a play with this proforma letter to be signed by the 30%+ of like-minded Owners, and then issue it to the Secretary, with a CC to the Strata Manager.
Don’t waste any time!!!
(Date)
The Owners Corporation Strata Plan *****
(Address)
Dear Secretary,
Subject: Compliance by the Owners Corporation with Orders issued by the
Strata Division of the NSW Consumer, Trader, and Tenancy Tribunal (CTTT).
At its 2010 Annual General Meeting the Owners Corporation (O/C) resolved replace certain windows comprising Common Property in this Plan, and you would be aware that the O/C has until 3 July 2013 to comply with that resolution and with complementary Orders made by the CTTT with regard to those urgent works.
You would also be aware of the decision of our Executive Committee (E/C) to overturn the O/C’s 2010 Resolution, and to obtain legal advice with regard to how the Orders of the CTTT might be overturned.
What you may not be aware of is that the decision of the E/C to overturn the Resolution of the O/C is illegal as it contravenes the provisions of Sect 21, Cl.2(b) & Cl.4 of the NSW Strata Schemes Management Act (the Act), and further that as the recent E/C Meeting did not fully comply with the provisions of Sch.3, Pt2 of the Act, its decision to seek legal advice is also illegal.
Consequently, we the undersigned serve notice upon you as Secretary that unless the works necessary to comply with the Orders of the CTTT are commenced on or before 3 July 2013, we will and without further notice commence proceedings:
1) to bring about the statutory appointment of a Strata Manager to take over the operations of Strata Plan **** under the provisions of Sect. 162, Cl.1(a) & Cl.3(A),(a), (b), & (c) of the Act; and
2) to petition the O/C to hold the Members of the E/C personally liable for any and all costs arising from the legal advice that has been illegally commissioned, and to inform your legal advisor/s of that intention; and
3) to petition the O/C to hold the Members of the E/C personally liable for any damage to property or injury to persons arising from its failure to properly maintain the Common Property (windows) and from its actions to frustrate timely compliance with a Resolution of the O/C and with Orders of the CTTT, and to inform our Insurers of that intention.
Yours faithfully,
Full Name Lot Number in SP**** Signature