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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
To HarbourView and my northern oz mate ……one of the things I’ve learnt about Strata is that owners’ goodwill rarely transfers with the title to their property. So call it bureaucratic if you like, but in my experience when you’re dealing with Strata matters there’s the legally correct way or no way at all.
In that context, in NSW changes / alterations to Common Property by an owner or by the O/C itself must be resolved by a Special Resolution, and in the absence of a complementary Special By-Law (excluding exclusive use if preferred) owners cannot be required to maintain Common Property.
Unless HarbourView’s O/C specially resolves to undertake and maintain the proposed works (my option 1), then any expedient or less bureaucratic approach relies on goodwill and may suffer the possible risks.
If you’re in NSW, the original By-Law 16 in Schedule 1 of the Strata Schemes Management Act (1996) didn’t have any options, so I assume that your Owners Corporation is proposing to adopt Option “C” of By-Law 17 in Schedule 2 of the Strata Schemes Management Regulation (2010) which states:
Subject to section 49 (4) of the Act, an owner or occupier of a residential lot must not keep any animal on the lot or the common property.
Whilst the proposed new Pet By-Law could be applied retrospectively, it sounds to me like it’s aimed squarely at those other owners who a keeping dogs without approval. In any case, in order to pass at the AGM, the Motion to adopt Option “C” (above) would require a minimum 75% of those owners present, including proxies, to vote in favour, and that’s a fairly significant hurdle!
Don’t be concerned about having to get rid of your canine friend, because even if Option “C” passes and there’s no “grandfathering”, I’m sure that your friend could very easily become a hearing dog, and would therefore be exempt from Option “C” under Cl 49(4) …….. what was that?
Jan – first of all, a Resolution made by owners at a General Meeting cannot be revoked by its Executive Committee (E/C); so that decision was illegal.
Secondly, whilst the E/C can resolve to obtain legal advice that decision has to be made by way of a properly conducted vote at a Meeting, with Minutes – not merely by “discussions”, and only then if the estimated cost of that advice as tabled at the Meeting is no greater than an amount equivalent to the lesser of $1,000 per Lot in the Plan or $12,500.
Thirdly, the 30% of owners who have written to the Strata Manager can object to the E/C’s decision, but I’d suggest that on the basis if what your previous posts have mentioned about your current Strata Manager, that request won’t go anywhere.
So if the lot unit entitlement of those owners’ properties represents ≥25% of the aggregate unit entitlements for your Plan (and I’m guessing that would be the case), then those same owners should immediately prepare and individually sign a letter to the E/C Secretary (cc the Strata Manager) stating that they require a General Meeting to be convened without delay under the provisions of Sch.2,Cl.31(3) of the NSW Strata Schemes Management Act (1996). That letter should include the wording of the Motions that those owners want resolved; that is on the legal advice matter and on anything else.
This statement probably won’t help, but I must say that you really seem to have a dysfunctional Plan and an ill-informed Strata Manager who’s clearly forgotten that he/she’s working for you and the other owners! He/she needs a wake-up call, so maybe changing Strata Managers should be another Motion for that General Meeting to consider.
What’s been the progress with mediation since the granting of those Interim Orders?
In short, YES the owners of the townhouse can request the Owners Corporation (O/C) to construct additional garden areas, which I assume involves Common Property.
Irrespective of who undertakes the proposed works, they’re additions or alterations to the Common Property and as such a vote by way of a Special Resolution is required, where ≥75% of those owners present both personally and by proxy need to be in favour of the Motion in order for it to pass, and that’s determined by the lot unit entitlement of those voting / the aggregate unit entitlement of your Plan.
Clearly a vote of ≥25% against the Motion will see it lost, but IF ≥75% are in favour it passes, and provided the O/C is satisfied with the garden’s location in the context of the Plan’s overall landscaping, it then has two (2) options:
1) If the O/C’s prepared to meet the costs of establishing and maintaining the proposed new garden areas, then it should seek consent the works and the resultant expenditure by way of that Special Resolution.
2) If the O/C’s not prepared to meet the establishment and on-going maintenance costs of the proposed new garden areas, then it should seek a consent to the works on the basis that the owners of the townhouse pay its costs to establish the areas and to maintain those, again by way of that Special Resolution.
In order to better ratify any consent under opt. 2 and to enable the O/C to exercise some on-going control over the nature of garden plantings and the integration of the proper maintenance of the new areas with that involving other landscaping at the Plan, I’d suggest that the O/C’s consent includes a requirement for the creation and Registration of a Special By-Law (SBL) at the townhouse owner’s cost (that cost arrangement is customary).
That SBL could if needs be make provision for the current and future owners of the townhouse to make regular payments to the O/C to cover its cost of on-going maintenance, to account for the increased “value” of the townhouse due to improved amenity, usable areas etc, and if relevant a provision for those owners’ Exclusive Use of the areas (if they are in fact as you suggest, “taking over”).
In the absence of further information:
• Owners Corporation – original tiles on the floor, on the inside of the outside walls, and on the wall between Units;
• Owner – tiles on internal walls (i.e. between rooms).
If the tiles aren’t the original ones fitted when the Unit was new, then the Owner is responsible for all repairs.
If as I interpreted from your earlier posts the Chairman and/or the Strata Manager is acting as an ”agent” for someone else, then the Chairman should declare to the Owners Corporation the nature and the amount of any resultant commission, and the Strata Manager is legally required to do that under the NSW Property, Stock, and Business Agents Act (2002).
That’s why I suggested that if my interpretation is correct and the Chairman is not the prime contractor, then the O/C should make sure that it’s aware of who is, because not only should that person or persons be properly licensed (e.g. Level 2 Certified Electrician) and accredited by the Clean Energy Council, they should be authorised installers for whoever it is that manufactures the panels and the inverter so that the warranty for those components is not compromised.
If by some chance the Chairman is himself doing the work, then he like any other business person would not be required to show the margins applicable to his quotation, but as he’s part of the Executive Committee he should abstain from voting on the proposal, and he shouldn’t have access to the detail of those other quotations that I suggested the O/C obtains before making an informed decision one way or the other.
And finally, if the Chairman and the Strata Manager are just environmentally aware or otherwise committed to what they’re proposing, then your O/C should still in my opinion have some competitive quotations to consider, and of course based on the same specifications. As I said before, in the absence of those quotations the O/C should defer any decision at the AGM, which by the way would need to be a Special Resolution (≥75% of those present personally and by proxy to be in favour by poll vote) if and when a decision is made.
As for the “advertising-like letters” that are being sent out by the Strata Manager, if they’ve been authorised by the Executive Committee as a whole as opposed to just the Chairman, AND the Strata Manager’s at a long arms-length away from the subject matter, then they could scrape through as a disbursement paid by the Owners Corporation. Otherwise they’re clearly advertising, and whoever does pay it shouldn’t be the O/C.
I’m sure we’d all like to hear about what eventuates.
If the repairs to Common Property arose from an “insured event” thats resulted in the Owners Corporation (O/C) making a claim against it’s Building Insurance, then most Policies include a provision for paying affected Owners’ costs of temporary accommodation.
Otherwise, it’s really at the discretion of your O/C, recognising of course that the O/C’s money is actually that of all Owners.
I was typing this at the same time as Kiwipaul posted his reply and got side-tracked by a phone call, so hopefully there’ll be no overlaps, but in any case, there’s no need for an apology Jan.
My original advice about the ability of the Interim Order (in NSW) to be amended stands, but the ease with which that is done will depend upon the willingness of the parties to do that through the compulsory mediation process.
The Owners Corporation (O/C) consenting to you enclosing a Common Area balcony is not so much about your exclusive use of that area because you probably had that anyway, but is more-so about you adding to the Common Property by enclosing that area.
Your Lawyer’s right, in that provided the O/C’s consent to your proposed works was granted at a General Meeting of Owners where ≥75% of those present both personally and by proxy voted in favour, where that percentage is calculated from the unit entitlements of those in favour / the aggregate entitlements for the Plan, then that consent is valid; it’s called a Special Resolution.
No doubt that is why Council accepted the written Minutes of the General Meeting as sufficient evidence of the O/C’s consent to your proposal prior to its approval of your DA.
There is however a proverbial “fly in the ointment”, because in order for the O/C to require you and any subsequent Owners of your Lot to be responsible for the on-going maintenance and repairs to the area of Common Property that you’ve enclosed, and at its option to require an initial and/or ongoing payment to account for the “value” of your exclusive use and of the increase to the living area of your Lot, then it needs a Special By-Law in order to do that, and that’s the customary approach.
That’s probably what your Strata Manager is referring to, but that’s no reason in my opinion for the Interim Order to be “tossed out” entirely as opposed to it being amended as I suggested.
I’d simply get on with the mediation process, complete the works on the balcony in strict accordance with your Owners Corporation’s written consent and Council’s approval, and after everything’s wrapped up ask your Executive Committee Secretary to place an item on the Agenda for the next General Meeting for Owners to “Specially Resolve” to create and Register a Special By-Law to again formalise your exclusive use, and to include a clause about the responsibility for the on-going maintenance and repairs of your works which add to the Common Property (which should be yours), and at their discretion any payment to the O/C as I’ve outlined.
Again in my opinion, that Special By-Law is in your best interests in the long term, especially as it cannot be revoked by the O/C at any future time without the prior written consent of you or whoever then owns your Lot, and that’s got to be worth the costs to you in having it properly drafted and Registered with NSW Land & Property Information (incorporating the former land Titles Office).
Jan – an Interim Order is generally put in place for three (3) months during which time mediation takes place prior to the then issuing of the Final Order. So in answer to your first question, yes it is possible for the Interim Order to be amended via the compulsory mediation process so that the Final Order is better reflective of what’s needed.
In order to more fully respond to your other questions, I for one need some further clarification:
1) Who applied for the Interim Orders?
2) What is proposed to be enclosed, the windows facing the balcony or the balcony itself?
3) I interpret from your post that as the wall and the window therein is part of the Lot, that the adjoining balcony is also part of the Lot, and it’s for that reason that the Owners Corporation’s Lawyer advised that an Exclusive Use By-Law covering that balcony was unnecessary; correct?
4) Why does your O/C now wish give the Lot Owners exclusive rights to the balcony when its Lawyer advised that was unnecessary?
5) Upon what basis is your Strata Manager disputing the Orders and/or the Lawyer’s advice?
6) Does the Strata Title Plan show anything about the ownership of the balcony-facing wall and the balcony area that’s in conflict with the Lawyers advice?
Sorry, more questions than answers I’m afraid, but I’m a little confused about the issues.
CCBaxter, regulars will know that for over three (3) years now there have 13kW of solar panels on the roof of our building, comprising those of the Owners Corporation and of individual Owners.
Consequently and with regard to the Owners Corporation’s investment at our Plan, I’m in a position to answer the question “will being green leave us all in the red?”
The answer from the purely financial perspective inferred by the question is, that even with gross metering and the $0.66 gross feed-in tariff from which our Plan will continue to benefit under the NSW Solar Bonus Scheme until 2016, ……. YES until the last year of the Scheme when the solar panels will have paid for themselves.
Is 5+ years a reasonable return on the Owners Corporation’s investment?
Probably yes, but in the absence gross metering and the subsidised feed-in tariff that our Plan receives, I’d now be examining any proposal being put very closely, and particularly so in your case as like every other business person, your Chairman and Strata Manager have an interest making money on the deal – in this case from a captive audience.
There’s not much time, but Owners in your Plan should certainly read Peter C’s excellent Paper on the subject (link in his post #13) before deciding how to “weight” the pros and cons of what’s being proposed, at least between its sustainable energy and financial benefits.
Before anything’s then considered at the AGM, those Owners must have before them a full and complete quotation from the current proponents including details of who’s actually doing the installation works, and obtain similarly detailed quotations from others.
Without the above I’d defer any decision until it’s a properly informed one!
Further to Peter’s response (with which I agree), the relevant Legislation is the NSW Strata Schemes Management Act (SCMA) which at Schedule 2, Cl 20. states that with regard to the recording of votes, the declaration of the Chairperson is sufficient to declare the outcome of Motions resolved by way of a “hands-up” vote, but by its use of the words “otherwise than on a poll” infers that resolutions determined by way of a poll vote must record the details for and against the Motions.
With regard to Meetings of Executive Committees, Schedule 3, Pt 2 of the SCMA sets out the procedures to be followed, and in summary those cannot be conducted by way of a “secret conclave”.
Whilst it’s said that “he who hold the pen controls history” it is customary, although not mandatory, for General Meeting Agendas to include a Motion for those present to resolve to confirm the Minutes of the previous Meeting as a true record of those proceedings. That’s your opportunity to have the Minutes amended, or at worst to request a poll vote on that Motion so that the numbers for and against acceptance may be at least recorded.
It’s Executive Committee Meetings where proxies need to accepted (or not) prior to the commencement of the Meeting.
But back on topic, I think that this is one of those times where the underlying intent of the Legislation is actually reflected in its wording.
The impacts upon strata democracy arising from the malaise of disinterested owners, owners of multiple Lots, and from those owners who farm proxies is bad enough in larger schemes, but it’s potentially severe in smaller schemes where overcoming those is much, much harder.
That’s why my interpretation was that Sch 2: Cl.12 (3) was the means by which the Legislators could put some special requirements around the General Meetings held by those smaller schemes (<9 Lots) with more than one owner, by requiring the attendance of at least 2 persons who are entitled to vote in order to form a quorum.
I don’t see why a quorum calculated in that way could not be a combination of proxies and personal attendees; it just needs a minimum of two!
It’s all of no consequence in sancataldo’s case though, as the Legislators omitted to prohibit poll votes in small schemes.
Jimmy, to save us all getting migraines debating this, maybe ask our friends at Makinson & d’Apice for an opinion.
It’s a moot point, but in this case I’m inclined to agree with the Office of Fair Trading (OFT) in that as there is more than one Owner in your Scheme, and 25% of that number does calculate as less than the 2 persons required under Sch 2: Cl.12 (3) the NSW Strata Schemes Management Act (SCMA), then a valid quorum is 2 persons who are entitled to vote, and the Meeting should have been adjourned.
This matter must have been dragging-on for a while if you’ve been charged interest and/or debt recovery fees (that can only be charged upon the expiry of 30 days beyond the due date for the initial payment), and whilst I know that this point doesn’t right a possible wrong, what would have been the point of the Strata Manager adjourning the Meeting when the outcome of a reconvened Meeting would have been the same, whether or not the other two Owners attended, simply because that one Owner holds 58% of the possible vote on a unit entitlement (poll vote) basis?
If you really (really) want to right a resolution that in my opinion was incorrectly taken, then as a first step you can seek a definitive ruling through mediation of the matter with the OFT by completing this application form, noting the requirement for you to have evidence in support of your claim including your advice from the OFT (name?) and that your past representations to your Strata Manager have been frustrated.
Even if mediation fails, there are still subsequent avenues for you to pursue resolution, commencing with this application for Adjudication and the issuing of Orders under S148 & S149 of the SCMA by the NSW Consumer, Trader and Tenancy Tribunal.