[Whale]

Struggs – I’ve picked-up the frustration in your words on this post and elsewhere on FlatChat about how your Plan operates.

It’s in your best interests, for the value of your investment, and for your own personal satisfaction for someone to take on the official responsibility of liaising with the new Strata Manager so that things that are the responsibility of the Owners Corporation simply get done!

To be clear, I’m not talking about “arranging quotes, tradespeople, meetings, and doing the odd jobs”, but about someone on the E/C who’s willing and able to work with the new Strata Manager so that they have someone to talk to, to bounce quotes / ideas off along the way, so that they can get on with it in a logical and cost-effective way – to the benefit of all Owners who probably won’t even notice; but what the …..

I think I know who that has to be in 2013, and I think that you do too; right?

(remember that you have an army of people here to bounce ideas off)

[Whale]

Carolyn – I think we all agree that it’s logical for the roof-void to be insulated concurrently with the works on the new roof. How that’s funded depends upon the value of credits available to first floor Lot Owners under your State’s VEET Scheme if they pay individually, or whether your Owners Corporation (O/C) Resolves to itself allocate communal funds (i.e. of all 14 Owners of your Plan) to complete those concurrent works.

However, should your Owners Corporation (O/C) decide not to go in that direction, there would be no point in my opinion for individual Owners to attempt to seek a Ruling or Orders from the Victorian Civil and Administrative Tribunal (VCAT) to determine if the O/C should or needs to do something for which it is not responsible, because just like the NSW Consumer, Trader, and Tenancy Tribunal (CTTT) it takes a dim view of frivolous or vexatious Applications.

Again in my opinion, if insulation is professionally installed whether by the O/C or by individual Lot Owners and it’s a glasswool type of product, the imperative is for your O/C to clearly Resolve who has the responsibility for any on-going maintenance / repairs / replacements of the product and how the O/C will be informed prior to any future installations of down-lights, exhaust fans, and similar thru-ceiling items by Lot Owners, each of which has caused electrical fusions and fires within roof-voids when proper installation methods within insulated areas were not followed. 

[Whale]

Justsaying – With regard to both your issues it’s clear that you have attempted to resolve them with your Owners Corporation, and as that’s the mandatory first stage before you may then seek to have the issues adjudicated by the Consumer, Trader, and Tenancy Tribunal (in NSW), where you have a couple of choices in my opinion:

1) Make an Application to the Strata Division of the Consumer, Trader, and Tenancy Tribunal (CTTT) seeking Orders from an Adjudicator under S156 of the NSW Strata Schemes Management Act requiring your O/C to make its records of the water samples available to you, and;

2) If the water sampler analyses support a claim by you for recompense from the Owners Corporation (O/C) or its Insurers for the damage caused to your cars whilst they were on the Common Property (carpark), and that’s your intention, then you should send the O/C a Letter of Demand via the Strata Manager requiring payment with say 14 days. If you don’t receive that payment, then you should apply for mediation of your Claim through the Community Justice Centre (in NSW) from where it will be escalated to the Local Court if that proves necessary.

With regard to your second issue of the damage to your courtyard, you are correct in your statement that the O/C is responsible for repairing any damage that arose as a consequence of its works on the Common Property. Don’t “battle” them or offer to “meet them half way financially” but instead make an Application (as above), but this time under S140 where an Order may be granted allowing you to have the required repairs to your courtyard undertaken, and where I think that Order can additionally require the O/C to reimburse your costs; check that first with the CTTT – phone on 1300 135 399

[Whale]

Carolyn – the advice that PeterC’s provided is entirely logical, but as quite often applies to matters such as the one you raise, logic doesn’t always apply.

Under the now defunct Federal Government Home Insulation Program, residents of Strata Developments were required to state that they had obtained the Owners Corporation’s (O/C) approval for the placement of insulation in the roof-void above their residences.

It was also the residents of Strata Lots that were able to access the grant monies and assign that to the Installers (even though many of those were conned as they weren’t on the top floor of the building), and you will note that the current Victorian Energy Efficient Target Scheme (VEET) has the same criteria, because it’s the Lot Owners who are responsible for installing and paying or roof insulation after obtaining the O/C’s consent to do so.

So I believe that the “official” line is that it’s the Lot Owners on the top floor of your Plan who should, at their discretion, seek the O/C’s consent to pay for and install insulation in the roof-void above their individual Lots, and again at their discretion under the VEET Scheme.

Now for the logical argument. I used the word “should” (above) because the requirements of the current sustainability programs such as VEET are often written around current building designs, where as but one example common walls between Lots extend through the roof-void and up to the underside of the tiles.

Clearly that’s not the case in your 1920’s Building where your O/C also needs to replace the entire roof covering, so it may be logical (and appropriate) in your instance for the O/C to Resolve (at a General Meeting) to allocate some of its common funds to pay for the insulation of its Common Property (roof-void) concurrently with the roofing works. 

Whatever your O/C decides to do, it needs to ensure that relevant safety requirements covering roof insulation are followed (e.gs. clearances around wiring, downlights, and exhaust fans) and that it Resolves and properly documents who is responsible for any on-going maintenance / inspections of / and replacements of the insulation product, how it will be made aware of any future installations of ceiling mounted items like those examples above, and who will be responsible for any damage arising from any such future installations about which it was not advised. 

Decision time cometh! 

[Whale]

Struggs – back to your original post, I hate to keep relating my experiences, or mistakes in this case, but I’ve had a few over the years that I’ve been Secretary in our Plan, and whilst I’m hoping to one day run-out of them (i.e. mistakes; no luck yet) I made another one by giving a Resident Owner a bundle of the “Friendly Reminder” notes that we use exclusively for rogue parkers (as it was such a problem, and still is albeit less so).

These colourful postcard-size notes were designed using one of the more prominent on-line printers / suppliers, and in order to be recipient friendly they featured some nice advisory words and even the graphic of a finger tied with a piece of string on one side, and the wording of our Special Parking By-Law (SBL) on the reverse side. I thought that style of note would have the desired effect, and it did, until this Owner caused me all kinds of grief when he made it his role in life to camp in the carpark and place one of our postcard-notes on the windscreen of every single vehicle who parked contrary to that SBL, including contractors’ vehicles and those of the cleaners who service our Plan’s short-term rentals.    

Thank heavens he quickly ran out of notes, so with the benefit of hindsight I’d say that Provided (note the capital) the Owner doing the advising is a responsible person who’s aware of the Executive Committee’s procedures and informs them of the warnings/notes that he/she’s issued (like you would be / do), then I don’t see how there could be a problem. If however that Owner is overzealous or purports that the note is from the “Owners Corporation” or “Executive Committee” as entities, then that could cause a problem if recipient/s become litigious [as in  LadyJ’s post (#3)].

I know that Jimmy T keeps stating that a NTC is a warning and/or advisory note, and he’s absolutely correct, but as kiwipaul observed (post #4) and I’ve experienced (yes another one) the CTTT does give an O/C brownie-points if it uses a prior means to advise residents and others that they’re in breach. So for the time being we’ll persist with our little talks, followed by an Advice Letter (or postcard-note for rouge parkers), and only then issue the NTC; that seems to keep me out of the CTTT (and I’m really chuffed about that let me tell you).

As for the “stamp”, that’s a Corporate Seal and whilst an Owners Corporation doesn’t have to have one, if it does them the stamp has to be of a design that complies with, and be used in accordance with the Federal Corporations Act (and a similar Act in NSW). That means a number of things most of which I don’t remember, but I do know that the stamp is used on contracts (like Agency Management Agreements) and on all official documents (like NTC’s), and that whilst there can be a more than one stamp the extras have to include the word “duplicate” on the face. The relevant section of the NSW Strata Schemes Management Act (the Act) is HERE.  

I hold our Plan’s Corporate Seal but then we’re self-managed, and in most instances such as yours the Executive Committee would meet and resolve to issue a NTC, and then instruct the Strata Manager to do that in accordance with the Act, including the placement of the stamp; so you (i.e. the E/C and O/C) probably don’t need to hold one.

[Whale]

In response to your questions:

• Annual General Meetings (AGM) are required to be held annually, and on a date that’s within one month either side of the date when the first (ever) AGM was held.
• The Secretary of your Executive Committee can convene, and therefore set the date of an AGM

Even though the responsibility for convening Meetings of the Owners Corporation (O/C) has likely been delegated to the Strata Manager, it’s important in your circumstances to note that any such delegation is granted by the O/C, and that under the provisions of governing Legislation (the Strata Schemes Management Act in NSW) the O/C remains the “Principal Manager” whose decisions override any taken by a delegate.

With regard to your intention to replace the Strata Manager, if that involves terminating your O/C’s current Agency Agreement, then the O/C will almost certainly be required to provide that Agent with three (3) months prior written notice of that intention, relative to the expiry date as shown in that Agreement.  

[Whale]

Sorry Dudley, what with almost 12 months of Agents, Strata Managing Agents, Property Managers, Strata Managers, Rental Agents, and Managing Agents please forgive me for being a little shell-shocked!

So the tree’s been removed without the Owners Corporation (O/C) either being provided with prior advice of the problem or having the opportunity to obtain quotations for the work from properly qualified and insured contractors.

I guess that’s fine from the perspectives that no consequential damage apparently occurred and that the Owner of the Lot most affected paid for the works (so far), but as the termites have the potential to cause Common Property and other damage in the wider area, I’d still recommend that the O/C attends to that problem – after all the Owner of the tree, who hasn’t bothered to mention the problem directly, will still pay a 25% share.

Ask your Plan’s Strata Manager to arrange for the works as they’ll no doubt have a business relationship with pest control contractor/s that may be available at short notice.

I’d also recommend that you ask your Plan’s Strata Manager to have a quick look at the Strata Plan (drawing) and check the upper limit of the stratum of the Lot, and also whether the front courtyard/s are part of the Lot or Common Property, because IF the Managing Agent now invoices the O/C for the works on the tree it would be nice for your O/C to know where it stands.

[Whale]

This is a difficult situation, as even though an Owners Corporation (O/C) can, by Special Resolution, decide not to maintain items such as trees (now large) originally planted by Proprietors, that’s only possible so long as that decision “will not affect the safety of any building, structure or common property”.

So whether the courtyards are Common Property or part of the Lots, the Strata Manager must have judged the tree to be a threat to a building/structure etc, and additionally as it would almost certainly been outside the stratum of the Lot (i.e. distances shown on the Title Plan above and below a fixed reference point such as the raft slab of the townhouse/s) its the O/C’s responsibility on that count also.

That’s why the Strata Managers arranged for its removal, and that’s also why they should now arrange and pay for the pest inspection and for any termite treatment necessary.

[Whale]

Having read each of your three (3) posts concerning your Plan’s Executive Committee et al, my advice is to make your fellow Owners aware of what’s going on, and to then go for broke by attempting to secure sufficient support from enough of those to force the Secretary to convene an Extra-Ordinary General Meeting (EGM) to then trash-out all the issues.

To do that you’ll need what amounts to a petition setting-out the Motions that you want discussed at an EGM, such as tabling any EC Minutes, filling vacant E/C positions / appointing a new E/C, tabling quotations and amounts expended etc etc., and you’ll then need to have that signed by a minimum 25% of the Owners in your Plan, with that percentage calculated as the total units of entitlement applicable to the signatory’s Units / the aggregate units of entitlement for your Plan.

The detail is shown at Sch 2 Clause 31(3) of the NSW Strata Schemes Management Act (1996).

[Whale]

JimmyT said

Whale’s suggestion that the outcome of such a motion might be to issue a warning letter is also fine because that’s just correspondence and has no legal standing in strata law beyond that.

 

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Correct – but I suggested the Advice Letter because in two (2) of my earliest appearances before the CTTT, firstly an Adjudicator and then a Member asked whether the Owners Corporation (O/C) had “communicated with” the residents in breach prior to it issuing the Notice to Comply (NTC).

In the first matter the conciliation didn’t get off to a good start (or finish too well) because the O/C didn’t do anything proactively to advise the residents that they were breaching the By-Law prior to issuing the NTC, and in the second matter the Member found in favour of the residents because they claimed that nobody from the Executive Committee advised them that they were in breach, and moreso because their Rental Agent didn’t include a copy of the Plan’s By-Laws with their Lease.

So as I don’t need to head-butt a wall more than a couple of times to realise that it hurts, our O/C agreed to implement a process whereby from that time on two members of the E/C would speak with residents who it believes have breached By-Laws, then issue an Advice Letter if it happens again, and only then hold a Meeting and resolve to issue the NTC if the same breach occurs for a third time.

Again, I acknowledge that this process is not in accordance with strata law and it is a bit cumbersome, but the CTTT appears to like it that way – although as our last appearance before it was a lay down misere under any criteria I can’t say whether our process assisted or not, but it can’t hurt in my opinion.

[Whale]

Great advice – let the aggrieved Owner vent their spleen at and Executive Committee Meeting, issue an Advice Letter (as opposed to a Notice to Comply) first up, and have a quiet word in the ear of the “much-liked” dog owner beforehand.

[Whale]

[Basil’s post (#3) must have come in whilst I was typing this one, but nonetheless most of what I’ve said is still valid, particularly the bit about Exclusive Use By-Laws requiring the written consent of the Owners concerned before they can be rescinded or amended. Note also that one specialist Strata Law firm is a sponsor of FlatChat]

Basil – firstly and as Jimmy advised, you need to check the Strata Plan (drawing) to ascertain whether or not those carspaces are shown thereon as Common Property, and if as I suspect they are, then for what purpose they were originally provided 40 years ago.  If they were originally visitors’ carspaces, then I’d make a few discrete and non-property specific inquiries with your local Council about whether or not visitors’ carspaces within Strata Plan’s can be permanently allocated  to resident use. There have been some discussions of this Forum to indicate that visitors’ carspaces are inviolate – once a visitors’ carspace always a visitors’ carspace, and if that’s Council’s opinion then you could use that as leverage in discussions with your Owners Corporation (O/C) about a resolution to rescind the Special By-Law as it’s in conflict with a “Superior Law” (the Local Government Act) and therefore illegal  –  just in case Council somehow finds out about it.

Secondly and as a another approach, whilst you’ve used the generic term “Special By-Law” (i.e. one specially resolved by your Owners Corporation) you need to obtain a copy of whatever is Registered on the Strata Title, because as that Special By-Law apparently confers upon the Owners of ten (10) Lots the “exclusive use” of those outdoor carspaces, it’s actually an Exclusive Use By-Law and covered under Pt5 Div4 of the NSW Strata Schemes Management Act (the Act). That Part of the Act states that any By-Law that confers exclusive use must include a clause stipulating who is responsible for the ongoing maintenance and repair of the area, and that may well be those Owners. If your Plan’s By-Law is silent with regard to ongoing maintenance and repairs, then it may well be illegal on that ground (also), and whilst it cannot be rescinded without the written consent of those 10 Owners, your O/C could use its illegality as a very strong lever to, as Jimmy T suggested, negotiate some agreed form of a new properly worded and properly resolved Exclusive Use By-Law to in future apply, which could include the provision of ongoing monetary payments to the O/C in lieu of a possibly painful approach to the CTTT about amending the Unit Entitlements of those Lots.

Finally, except for doing nothing whatever course of action you choose to implement will require a Special Resolution of your O/C where ≥75% of Owners in attendance personally or by proxy will have to vote in favour of whatever is proposed, so given there’s 34 Lots and 10 Owners possibly against the Motion, you and the like-minded members of your O/C will have to rely heavily upon the possible illegality of what’s now in place to swing things in favour of a change to legality and equity.

Christmas Greetings (and good luck) to you too! 

[Whale]

As a Member of an Owners Corporation who moved to self-management years ago, I agree with Paul2000, but I also agree with Jimmy T‘s suggestion that you need to find a Strata Manager that’s appropriate for your Plan.

“Appropriate” predominately relates to the size of your Plan; ours is 27 Lots and on the basis of experience that’s about as many as I (as Secretary and all ’round dogs-body) could manage – properly.

At least one of the Strata Management Companies that Jimmy T‘s mentioned offers a Record Keeping Strata Agreement, where they handle all the paperwork like legislative compliance  budgets, agendas, minutes, levy invoices, work orders, and paying the bills, and that leaves the Owners Corporation, and more specifically its Executive Committee, to fully control all the day-to-day maintenance, repair, and relationship issues at its Plan.

So now you have three choices, to:

1. select a competent Strata Manager from the names provided and negotiate a full-service Strata Management Agency Agreement;
2. move to self-managemnt and do it all yourselves, or;
3. select a competent Strata Manager, negotiate a Record Keeping Strata Agreement, and do the rest yourselves.

What a great and useful Forum this is!!!

[Whale]

I don’t know what State/Territory you’re in but as you’ve referred to an Executive Council I assume that your Plan is in WA (?).

KiwiPaul‘s provided a QLD perspective, and whilst Strata Legislation varies from State to State what’s he’s advised is pretty much spot-on irrespective of where your Plan is located.

Whatever Legislation applies, in my opinion the common principle is that if a Council Member isn’t currently delegated to approve the engagement of Contractors and/or to authorise the payment of their Invoices and they have, and there was no budget allocation for the works involved, then they’re at fault for not first taking the matter of the works on their apartment to the other Members and/or to the Strata Company, and so is the Strata Manager or whoever it was who engaged the Contractor (at fault) by issuing the work order and by drawing the cheque.

You mentioned that a cheque had been made out and that works on the apartment had been stopped, but has the Contractor been paid, part-paid, or not yet paid, and has your Strata as yet assessed whether the works on the apartment are the responsibility of the Strata Company or the apartment Owner?

I and others who may respond further to your post would need to know that in order to more fully advise. 

[Whale]

At a recent Christmas Function I spoke with a former colleague of mine who now works with NSW Planning & Infrastructure, and took the opportunity to briefly discuss her Department’s Policy with regard to visitors’ carspaces in Strata Developments.

She advised that the Department was only concerned to ensure that the carpark design, such as its turning paths, driveway widths, and ramp grades, meets the Australian Standards, and that visitors’ carspaces comply with Guidelines that relate only to the means to calculate the numbers of such carspaces to be provided for in the design, and not how they’re used post completion of the Development.

Give the extent of Strata Developments in the pipeline, the Department has (or will) mandate a range of controls for Councils and Private Certifiers to follow in yet another State Environmental Planning Policy (SEPP), which will of course include carpark design and the minimum numbers of visitors’ carspaces to be provided.

Interestingly, my former colleague made reference to the fact that in order to comply with open space ratios, some Developers were lobbying for Strata Developments with no off-street visitor parking at all, and on the other extreme a strata owners association whose title she couldn’t recall (after all, the Function had been in progress for a couple of hours) was suggesting that parking areas for Resident Owners and for short-term Residents (i.e. tenants?) should be segregated.

No doubt parking with remain one of those 3 “P’s” that are the bane of Owners Corporations, but from what my former colleague informs me NSW Planning & Infrastructure has no interest in how the visitors’ carspaces designed into Strata Developments are used post completion of the Building, and I’d suggest (but not deny) that most Councils wouldn’t either so long as the numbers required under the SEPP and as reflected in their Development Control Plans, now as low as 0.2 visitor carspaces per Lot, is complied with at the time of approval.

So it looks like By-Law 2 will become surplus to the requirements of Owners Corporations in many new Strata Developments, because there won’t be any visitors carspaces!

[Author]

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