Forum Replies Created
-
Replies
-
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.
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!
Casper – you’ll find that the Fee you’ve received is not to do with any services provided by debt collector, but is the Strata Manager’s fee for the preparation of the Notice that you received. So you’re right, the debt collector hasn’t done anything; yet.
If you don’t pay the current Fee, depending upon the Debt Collection Procedures adopted by your Owners Corporation, the Strata Manager may issue a further Notice for another Fee and that’s when they could refer the collection of both those to a Debt Collection Agency — and when they’ll correspond with you and at the same time add their Fee to your Debt.
If you maintain your position, whilst it’s unlikely that your O/C would take the matter to the Local (small claims) Court the debt would certainly be recorded against your Lot, and the consequence of that is that the debt would be paid by way of an adjustment at Settlement (in favour of a purchaser) IF you ever sold your property.
It would probably be a wise move to swallow your pride and just pay the Fee for the first Notice before the Fees for second and third ones arrive!
The revision of By-Law 3 that’s provided in the 2010 Regulation to the NSW Strata Schemes Management Act (1996) adds the words “except on a temporary and non-recurring basis”, and therein lies a hint that even the Legislators are softening the application of that By-Law.
Right now though your Plan’s version of By-Law 3 is the unsoftened version, and whilst PeterC’s right (post #2), an “obstruction” could be in the eyes of whoever it is who doesn’t see it and consequently bumps into it and/or falls over it, and further, your tenants really shouldn’t be chaining their bicycles to a balustrade any more than they should be dragging them up three flights of carpeted stairs; both have the potential to damage Common Property.
So I think that your tenants would be foolish to not follow the Owners Corporation’s (O/C) advice (that’s what it is) as issued by its Strata Manager to the effect that they should comply with the By-Law.
A possible solution? Well bear in mind that the issuing of a fine is a maybe that’s a very long way from where matters are presently, but in addition to lobbying your O/C as Jimmy T suggests you and your tenants need to do something now about the current situation.
I’d suggest you immediately write to your Strata Managers, who work for you remember, acknowledging the advice provided to your tenants, “sticking up for them” by pointing out that bicycles are increasing becoming some peoples’ preferred mode of transport, and to request that the Managers immediately confer with your Executive Committee about nominating a location on the Common Property where residents’ bicycles may be safely left and where they will not cause an obstruction to others. If you or your tenants know of such a location, then by all means suggest that in your letter.
You should meet with your tenants to provide them with a copy of that letter, and to make whatever short-term arrangements are necessary for them to safely store their bicycles off the Common Property pending a response from your Executive Committee. Could they perhaps manoeuvre their bicycles within the carspace allocated to your Unit albeit on a temporary basis and store them there?
We had a similar problem in our Plan a few years back, and the E/C did in fact advise our residents of a safe position under a carpark light on the Common property for the temporary “parking” of bicycles until the next AGM approved the purchase and permanent installation of a heavy-duty galvanised 10 bicycle rack at that same location. By the way, it’s been very well used ever since which all goes to show that strata residents will do the right thing if they have a choice and they know what it (the right thing) is!
Most items have been covered in the preceding posts but to elaborate, in NSW any Fees & Charges raised by your Plan’s Strata Managing Agent are shown in the Agency Agreement that your Owners Corporation has with that Agent, and the method of their application for debt recovery is usually provided in a Motion submitted by the Strata Manager for consideration at each Annual General Meeting of the O/C.
You should make it your business to know what your Plan’s debt recovery procedures are, and that’s why your O/C (of which you’re a member) needs to agree to the amount/s of those Fees via its Agency Agreement, and via a Resolution taken at a General Meeting of the O/C with regard to how those procedures will implemented for those Proprietors whose payments are in arrears and at what intervals (e.g. 30 & 60 days after the due date) they’ll be applied.
As the Secretary & Treasurer of a self-managed Plan I must admit that I don’t have a lot of sympathy for Proprietors who don’t pay their Levies on time, but in answer to your specific questions, the interest that an O/C can charge is restricted in that it can only be applied to Levy payments, and only then to amounts in arrears at one calendar month from the month in which the payment was due, and at 10% interest (simple).
So your Plan’s Strata Manager cannot charge you interest on the collection fee component of your debt, that debt for fees alone does not make you un-financial in terms of you voting at General Meetings, but your Strata Manager may, under the O/C’s Resolution that I’ve referred to, engage the services of a debt collection agency on behalf of the O/C whose fees will be added to your debt if/when collected.
With respect to your Executive Committee waving those Fees, they’re not the O/C’s Fees to waive they’re the Strata Manager’s Fees incurred in doing the O/C’s business, and so far as the interest on any unpaid Levies is concerned, that can only be waived by a Special Resolution taken at a General Meeting, not by the E/C Chair or by a vote of its Members.
If the matter proceeds to the Local (small claims) Court, there’s a well established precedent that it will only award debt collection fees against a Proprietor if the Strata Manager can justify that the amount of the Fees was an incurred expense (i.e. in collecting the debt), but I’d suggest to you that a large Agency such as the one that you’ve referred to could probably make that justification.
After all that, in my opinion a reasonable way forward for you would be to ask your Strata Manager to check that the calculations of interest has been applied only to your Levy payment arrears beyond that one month period (if it doesn’t already) and at the prescribed rate (10%), to then pay the full amount owing, and to either make a note in some reliable way about when your Levy payments are due (same date) each quarter or ask your Strata Manager to send all future Invoices to you by e-mail.
I don’t how much notice the decision makers will take of submissions to the (NSW) Strata Review, but with regard to By-Laws my submission suggested that rather than having whatever “Model By-Laws” emerge from the Review then applying retrospectively to all existing Strata Schemes, perhaps have a comprehensive suite of By-Laws from which Owners Corporations (O/C) would be required select and resolve to adopt, and then consistently enforce in accordance with the then operations of their Scheme.
If at some future time the operations of a Scheme required the adoption of another By-Law from the suite included in the Act, then the O/C could resolve to adopt and consistently enforce that. Special By-Laws for specific purposes could still be adopted using the same procedures that currently apply.
My objective was to give O/Cs the ability to choose and adopt the By-Laws that are essential to the operations of their Plans; and if they’re that essential why wouldn’t they consistently enforce them?
Not me ’cause I get on with everyone, but should we add play areas to pets, parking, and parties as the bane of some strata dwellers’ lives? (
) Note: I just realised that the “p” word I used in my original post had another meaning which could upset some people; something I never set-out to deliberately do. So I edited it out at 1000hrs. Apologies to anyone who read my post in the last 40mins and was offended by that original “p” word.
tsk tsk Blue Swimmer, I’m surprised that a fellow ocean dweller could be so cynical about another’s motives, especially when Anna also said that she was “hoping that making the space more attractive would benefit all the residents”.
That was one of the reasons that I didn’t suggest making a specific reference to children (they’re residents too remember), the other being that I thought the reference in the suggested Motion to the existing By-Laws, which Anna said includes one about children on the Common Property being at all times under adult supervision, should cover the contingency that you’ve raised.
So no, I wouldn’t be any more descriptive, but that’s up to Anna as only she knows what her motives are, and how she thinks the area will be predominately used.
Struggs – If neither the Motion that was put nor the Resolution of it at the EGM includes the name of the contractor who it was proposed would do the work and the quoted price is the same (or less), then NO I don’t believe that your Owners Corporation needs to convene another General Meeting just to use a different contractor.
As a matter of interest, what’s your E/C’s problem? It sounds to me like somebody who attends the Meeting/s should ensure that the wording of all Resolutions on Common Property maintenance includes something about timeframes for Work Orders to be issued to successful contractors; know anyone who could handle that?
Anna – In my experience, in order to avoid protracted discussions at the Meeting and people claiming afterwards that they didn’t understand the implications of the Motion (and therefore didn’t attend the Meeting), it’s better for those to be as descriptive as possible both in terms of the voting requirements and what’s proposed. I’d suggest something like:
THAT in order to enhance its Common Property the Owners Corporation Specially Resolves to erect (height / style e.g. child-proof / colourbond / aluminium) gated fencing at either end of and to improve the landscaping at the grassed area located (describe) for an amount not exceeding $ (amount) with the use of the area being consistent with the existing By-Laws.
Good luck; it’s good to see Proprietors taking an active interest in the amenity of their Plans.
Daphne – As a regular contributor to your posts on this topic I feel somewhat obligated to give you this piece of advice with regard to your ongoing efforts to see that Strata Management Agency Agreement, as taken from Jimmy T’s most recent “editorial” on this forum’s home page…..
“Give up and don’t expend another brain cell or waste another tear of frustration on it. It’s not life threatening, it’s just bloody annoying. So let it go and, in a way, you’ll have won“.
After you’ve done that and taken a few deep breaths, if you still have concerns then or in the future about how your Plan’s managed, then document and regularly speak with your fellow Owners about those concerns and bide your time until you have the opportunity to put them on the Agenda for the next General Meeting, when you’ll likely have some like-minded supporters.
In the meantime, enjoy the sights around the pool (
) have a joyous Christmas and I hope that Strata living is better to you in 2013!!sltflatchat- I agree with your interpretation that your Strata Manager’s Sh2 dutiies of “enforcement” would cover issuing a Notice to Comply (NTC), but it’s what may follow the issue of that Notice that I believe is causing him to prevaricate.
Let’s assume that the recipient of the NTC wants to discuss the issues with the Strata Manager who issued it and that discussion becomes heated, or if that recipient chooses not to comply. As the “peaceful enjoyment” issue that your original post referred to likely relates to noise, that’s an issue that has to be mediated through the convoluted processes of the Consumer Trader & Tenancy Tribunal (CTTT).
Those of us who have experienced the CTTT know how painful that can be, not just in terms of your Strata Manager’s time to attend the mediation sessions ($), but if those don’t produce a settlement, also in terms of the Tribunal where Members’ often make determined and time consuming ($$) efforts to find a reason for not ruling, on anything.
I’m not in any way suggesting that your Executive Committee drops the issue, but rather that it knows what the issue of a NTC could lead to, and that there may be other ways to skin the noisy tenant.
The first alternative is to advise the Proprietor/Landlord and their Agent in writing that their tenant continues to breach the Plan’s By-Laws and the conditions of his/her Tenancy Agreement despite the issuing of “several warning letters” (copies of which should be attached). That letter should also point out to the recipients that under a NSW Local Court Ruling (6393/11), a Landlord (and their Agent) is deemed as responsible for the consequences of their tenant’s noise making activities as they would be if they themselves had made it.
The consequences of the above were Orders against the Proprietor/Landlord pursuant to S268(4) of the NSW Protection of the Environment Operations Act (1997), and that leads to your E/C’s second alternative whereby it can itself seek to obtain a Noise Abatement Order against the tenant in the Local Court. Sure, your E/C would may need to present evidence and statements, but it would need to do that anyway if it proceeded down the NTC path as opposed to the much more certain and less convoluted one to the Local Court; why not ask them?
The third alternative is that when the tenant next creates a disturbance, call the Police because they have the discretionary powers to issue a Noise Abatement Warning, and if it persists a Noise Abatement Direction where an on-the-spot fine generally gets results.
The last alternative is to produce a short E/C Meeeting Agenda, hold the Meeting (by e-mail if necessary as Scotty suggests), Minute the Resolutions to issue the NTC and to instruct your Strata Manager to issue that, and provide him/her with a copy.
That’s it … probably confused the issue, but these are all the options that I can think of to resolve the issue of a tenant “interfering with the peaceful enjoyment of another occupier”; good luck.
I had the same problem, and still do very occasionally as Property Managers seem to be transient and I have to keep educating new arrivals.
In answer to your question though, I had one Agency whose Licensee flat out refused to provide the S119 Notification on “privacy grounds”, even though I’d e-mailed his person on numerous occasions including to interpret and explain the meaning of that Clause in the context of the Strata Schemes Management Act (the Act) and of our Owners Corporation’s need to properly manage its Plan.
I even attempted to speak with this Licensee personally when I visited the Agency in an earnest attempt to resolve her issues, and all I received in return was a tirade of verbal abuse, and in front of potential Clients of the Agency who were looking at property photos on the office display window.
I can handle blokes who behave badly, but women leave me totally flummoxed!
So I was left with no option other than to lodge on-line complaints to the Office of Fair Trading (OFT); one about the Licensed Person’s non compliance with S119 and the second about the verbal abuse.
After following OFT’s procedures by again requesting the S119 Notification and this time including a date by which I expected to receive it (even though the Act prescribes 14 days from the commencement of the tenancy), matters progressed over about six (6) weeks as follows:
1) I received a “we’ll look into it” letter from OFT.
2) I received a letter from OFT stating that under the Act it’s the Owner who’s responsible for providing the Notification
3) I wrote to OFT querying that as the Licensee was the Owner’s Agent for the management of the property, wouldn’t it be their responsibility to provide the Notification?
4) I received a letter from OFT advising that it agreed that it was the Real Estate Agency / Property Manager’s responsibility to provide the Notification on behalf of the Owner (a point worth noting), and further that the Licensee had provided them with a copy of a S119 Notification dated on day 14 after the date of the Tenancy Agreement, so no further action was required.
5) I phoned OFT’s investigator, who reluctantly agreed to provide me with a copy of the Notification, which despite all my correspondence requesting it to be provided to the Owners Corporation, was addressed by the Licensee to a Strata Management Company that our Plan ceased using 2 years previous (at that time), and which had in that time been absorbed by a much larger Strata Management Company who was trading at the original address, but under its own name and not the one to whom the Notification had allegedly been provided by the Licensee.
6) I spoke with the Strata Management Company concerned, who denied ever receiving the Notification, and stated that if they had received it they would have advised the O/C by letter to its address at the Plan.
7) I provided all information obtained to OFT.
8) OFT’s investigator rang me to acknowledge that the Notification was possibly backdated, and further “off the record” that it was probably never forwarded to the Strata Management Company, but that as the O/C now had the Notification albeit at least 9 weeks late, the OFT’s investigation was at an end and that no further action was necessary.
As for my personal complaint with regard to the verbal abuse (as opposed to the one made on behalf of the O/C), OFT’s response was that as I was not a Client of the Licensed Person (who did the abusing), there was no breach of the Property, Stock and Business Agents Act.
Not to be denied, after a great deal of effort I eventually made contact with the head honcho of the large Real Estate Company with whom this Licensed Person had a Franchise. He agreed to make some inquiries and a few hours later contacted me by phone to advise that the Licensed Person’s franchise would not be renewed.
I never found out what transpired between the head honcho and the Licensed person, but the former suggested to me that he too had been verbally abused – not a good idea, although the Agency’s still trading under a different name and from what I hear the Licensed Person is as prickly as ever; thankfully though not to me as the Agency no longer manages any permanent rentals in our Plan
So back to your question once again…..
I don’t think that the OFT prosecutes anybody unless it’s a high-profile matter, but in my experience the fear of that 5 Unit Penalty ($550) together with nicely worded reminders, and in our case a proforma Notification downloadable from our Plan’s website, will almost always achieve the desired result when you’re dealing with Agencies / Property Managers.
Why not try a similar approach to the Property Managers instead of to the Proprietor/Landlords?
Kiwipaul – that part of my post was somewhat facetious and was not suggesting that the visitors’ carspaces be removed, but rather that the By-Law that prevents residents from using them be repealed. Nonetheless you’re correct, in that an over-zealous Council could get their bureaucratic nickers in a knot if the required numbers of visitors’ carspaces weren’t available for that purpose.
The By-Law that you have referenced is the standard By-Law #2 provided in Schedule 1 of the NSW Strata Schemes Management Act (1996), and which most if not all Strata Plans have adopted to prevent people like you from regularly using visitors’ car spaces illegally.
If your Plan’s Strata Manager receives sufficient complaints from Executive Committee Members or indeed from any Owners about a person regularly (like every Thursday) using visitors’ car spaces illegally, then they’re entirely within their rights to issue that person with an advisory letter, and depending upon their delegations under their Agency Agreement with the Owners Corporation (O/C) that letter could be followed by a formal Notice to Comply, where monetary penalties can be applied.
You regularly parked in the visitors’ carspace, right? So how is a general advisory letter about that bullying? Rather, it’s merely an O/C complying with its legal obligations to enforce compliance with its By-Laws. If Owners don’t want a parking By-Law enforced, then they can vote to repeal that By-Law at a General Meeting, and parking anarchy will likely result in you and other Owners not being to access the garages at all!
So unless you’ve got deep pockets, I’d strongly advise you to either seek the written consent of your O/C to park your vehicle in a visitors’ car space during specific times on specific day/s, or park your vehicle on the roadway whenever you need to access the items stored in your garage.
Not the answer you wanted I’m sure, but that’s how it is!