[Enough of Strata]

I Read the exchange with interest in regard EC member liability.

I wonder if by changing the act there MIGHT BE an unintended consequence.

As I understand it the Committee should comprise a Chairperson, Secretary and Treasurer, (who are Owners / Owner representatives) elected at a GM.

It is standard practice in Strata Management agreements that these functions are “delegated” to the Strata Manager, for convenience and a back-up.  Where no Lot owner offers themselves to be a Committee member, and in other circumstances the delegation is operational.

Where a delegation is in  place (many / most Strata’s appear to operate in this way) could it be that the Strata Management company would also be considered to be caught under the new provision, and themselves be liable also if maintenance was not performed.

I’m sure this might cause a reaction from  Strata Managers if this was the case.

Whale: your input would especially be valued on this aspect of the matter.

[Enough of Strata]

This is an update to my last post on this matter that I said I would provide:

Immediately after my last post, I E-mailed Strata Community Australia (SCA), saying I wanted to make a complaint about members:  After a short period I received a response indicating where their complains process could be located (a non-prominent location on their site). 

I E-Mailed back saying that before going through what appeared to be a complex process, I had better be sure and not wast their time, (and mine) and sought confirmation that 2 persons (who’s names & SM companies were provided) were actually members of SCA.

As of today I have not received any response and do not expect to receive one.     

If that actually turns out to be the case it will be another indication of how difficult it is to get anyone to assist with and resolve “Irregularities” relating to Strata Schemes. (The End)

[Enough of Strata]

For those who have followed this saga and may be interested in responses from other Strata Managers approached in relation to assisting with an application to the Tribunal for the Appointment of an Administrator, the following is representative of the response of the others contacted.

“We consciously have decided NOT to manage Strata Plans under a compulsory appointment arrangement. Thanks for reaching out anyway”. 

In  other words – No interest. So the chances of you getting Strata Managers who want this type of appointment (helping you on the way) do not appear to me to be very high.

As an exercise, I will be seeing how a complaint to Strata Community Australia is handled when I advise the Strata Manager conducted 2 AGM without a Quorum (and other matters).  I am not expecting much, but we shall see.  (To be continued) (Winston)

[Enough of Strata]

Thanks Jimmy for your quick response.

I am expecting the SM to put the issue of a new SM agreement on the Agenda at the next GM. The current arrangement is 10 Yrs old, and has been on a 30 day notice for a couple of years now. (I have a copy).

Re: Agenda Item: I am aware of being able to put matters on the agenda but know if done with only about 8 who attend (past records) with most in the camp of the EC I assess they will not pass if I / we put them up.

Re: Replacement doors – re-reading what I wrote- I have conveyed the situation incorrectly – my apology. Apparently “Replacement doors” will be part of a package of measures recommended by a company who assessed the Fire Safety requirements for our buildings. The OC will install them. However the EC wants to make any damage to them for the account of the owner (regardless if owner or tenant caused it).  Not sure if they have sought advice on whether this is able to be done – but that was the intention at the last AGM:

I have just received this E-mail response from one Strata Manager I approached to be involved with an application for Administrator appointment: 

Quote”

For the NCAT to award a compulsory appointment it is generally as a last resort & the Owners Corp requesting this would need to prove that the Executive Committee & or the Owners themselves are in a dysfunctional position.

 I would suggest that 1 of the steps the owners would need to undertake as a minimum would be to hold a EGM or if your AGM is upcoming to put a motion forward to terminate the current Strata Mgmt & to appoint another. If this is defeated you would have at least shown to the Tribunal member that you have tried to terminate the Strata Mgmt & this was not successful. The key to having a compulsory appointment would be to prove that your situation is unworkable.

 To call an EGM you need 25% of financial owners (8 for your strata) to sign a document to call the EGM. You can serve that on your Strata Mgr & he has to call a meeting within 28 days. You can also have a motion to dismiss the current Executive Committee & have a re election.

 We do not generally chase Compulsory appointments & before accepting we would want to see the financial history of the Strata Plan. We would also charge a premium on our Mgmt Fee as the compulsory agent is usually terminated as soon as the period expires.” Unquote

 I have contacted more SM’s & await their response, but consider their response may be similar.

I am not sure how other owners would feel when it comes to extra cost & disruption, Vs doing things correctly. There is also the practical ability to get 8 lot owners to agree to call an EGM in our own right.   It seems you are damned if you do and damned if you don’t.  

[Enough of Strata]

Thanks for your suggestion Jimmy.

The “New EC member” has now listed his unit for sale, but will have an input until he settles.

We considered your first suggestion and concluded that if may be difficult to interest those Owners who traditionally do not attend in sufficient numbers to carry the day, and has less chance of success than the second suggestion.

I contacted a couple of Strata Management on your second point.  The initial response (although not yet final) was:

With this type of appointment, at the end of the term there is usually considerable ill feeling among the those involved (particularly if some were shown up as not doing things properly) and traditionally a small possibility that the Strata Manager appointed as Administrator is likely to be approved to continue as the Strata Manager.  (That is what I would assume would be the reason why someone would  assist in this matter would be looking for).

In our case the SM agreement is on a 30 day termination status, however I expect the current SM will try and lock in a fixed term renewal since he has now been advised some Lot owners are not happy with the service. 

I am advised an EGM will be held soon, which I understand will cover a By-Law changes related to damage to Solid Core door & Fire Door’s to be installed to Lots by owners / tenants, where it will be proposed the Owner be responsible for any damage.

While I will try more SM’s I also must be realistic, and take into account the WIIFM  (What’s in it for me factor).

Again, thanks for your suggestion (Winston).

[Enough of Strata]

Thanks for you input Whale; As usual excellent points and realistic comments about the likely outcomes. 

Today with the new EC member and I attended a meeting with the Strata Licensee to discuss matters.  This was suggested by a lawyer friend of new EC member, before proceeding to NCAT (should he wish) if things could not be resolved.

The Licensee did not seem interested in the By-Laws being incorrect (he sighted them, was shown the title search showing no changes made, & agreed they were wrong ) and suggested that the New EC Member take it to NCAT himself, to get the EC to correct the By-Laws posted on the Notice board.  Quite disappointing he did not offer to get the Strata Manager to take the matter up with the EC.

Since my original post (7/1/16) I had written to the EC Secretary advising that the 9/12/2014 minutes attached to the 9/12/2015 AGM had not been corrected as 2 matters related to the 2014 AGM were discussed in detail at the 2015 AGM agreed as needing correcting, but had not been corrected in the minutes.  (His Strata Manager was responsible for the non correction as she wrote up the Minutes). 

Our EC Secretary had (possibly with the input of the Strata Manager) written to me saying the EC members would consider my complaint that the correction had not been made, and then wrote back a week later with a fob off, which in short said the EC members had considered the matter and the minutes are correct and I should not communicate on this matter again but I could bring it up at the next AGM if I wished. 

The New EC member had no knowledge of any meeting or discussion relating to the incorrect minutes (as he should have) and was annoyed he had been left out. He was probably left out because he declined to sign their Code of Conduct. The EC member communication must have been informal (if they occurred at all) as no 72 hour Notice of EC Meeting was posted, and a 4 day period between advice that the EC members were to be given written notice of my complaint and response to me.    

The Licensee said only that I could take the matter to NCAT, clearly not wanting to be involved.

He did seem a little more interested when he was advised that last year some Lot Owners informally contemplated a change of Strata Manager, and quotes had been obtained. He then spoke of a possible change of Strata Manager might be considered, without giving a commitment.

I then provided him details of the 2 AGM’s which were conducted without a Quorum by the current Strata Manager, & a schedule detailing showing at least 5 years where no Sec / Treasurer / chairman were appointed, noting there did not appear to have been formal EC meetings with minutes held in many years. 

Whale – It appears to me that your comments are totally correct when you say : “there has to be a better alternative to the conventional and largely ineffective processes to ensure that Owners Corporations, like all others, conduct their affairs according to Law”.  Regretfully it appears that Strata Managers can also do pretty much what they want also.

I give up (as does the New EC Member) and will no longer expend time and effort raising matters in order to have things done correctly or attend meetings. I had a similar experience in relation to “Fire Safety” with the Strata Manager & EC where they did had no interest in getting a legal opinion to validate if we actually needed to upgrade the premises to the current Fire standard even though we were a 1975 building (see my post of Building & Mtce / Fire safety Audits 30/12/2015).

Again Whale thanks for your input & common sense appreciation of the dynamics at play  – very much appreciated.  (Winston)

[Enough of Strata]

I am posting this primarily as a warning of what at least one Sydney based Council has decided to do in relation to compliance with CURRENT Fire Safety requirements, regardless of its legal ability to do so.

In previous FLAT CHAT posts relating to Fire Safety requirements for Unit Blocks built, it is clear that those buildings that had their Development Consent granted after 1/7/1988, the prevailing legislation enabled councils to issue a Fire Safety Schedule (FSS) as part of its Development Consent, and thus requires those buildings to comply with Fire Safety requirements [Annual Fire Safety Statements (Inspections)]. However, Development Consent prior to that date meant that there was NO legal requirement to comply with Current Fire Safety Requirements.

Our Strata Manager apparently received a letter from our local Council dated 11 June 2015 stating that our “Residential Flat Building” was required to provide to Council an “Annual Fire Safety Statement”  by 30 July 2015. (Apparently this was the first “official” communication). (I obtained a copy from Council).  Our building was erected in 1973, and has not changed. I had no knowledge about this matter until it appeared on the December AGM agenda as a motion that we approve work (expensive) to comply with the new Fire Safety requirement from Council.  Apparently this following an inspection of each Unit by an external assessor engaged by the Strata Manager & Executive Committee in August 2015.  (Only residents [not non-resident owners] were notified).  

I wrote to the EC and Strata Manager prior to the AGM advising that I considered this was unlikely to be a valid legal requirement of council and quoted the relevant sections of past and current legislation, suggesting that Legal opinion be obtained on the matter first, which resulted in a response that “It’s a council requirement”.

I went to the local Council (Building Dept) and was told in response to my raising the pre 1/7/1988 status of our building which did not require the Annual Fire Safety Inspection, that they considered that the previous and current Act did permit them to impose the requirement for a Fire Safety inspection on Pre 1/7/1988 buildings, and that the Council did not want to be blamed if someone in the council area died in a Unit fire where Fire Safety measures were not installed. This being one reason why they were implementing the current Fire Safety requirement on existing buildings. 

At the AGM I tried to argue the issue however the Strata Manager and the Executive Committee who had influence over the other attending owner occupiers would not accept there was doubt over the Councils position. To cut me off the Strata Manager told me that she had already obtained a Legal opinion (no offer to table it) and the council position was correct. I did not believe the Strata Manager’s statement to me, however I decided that there was no way I was going to prevail and to fight it further would be difficult and resisted, so accepted that I would need to bear about $1,600 in extra Sinking Fund levies to cover my units share of the costs to upgrade for Fire Safety.   (30 units involved)

So the warning is:  If you find this happening at your complex, you may have better luck than I, but if the Strata Manager and Executive Committee are not open minded and willing to listen and actually get a Legal opinion, and challenge the Council, it is going to cost big time.

[Enough of Strata]

Thanks Whale:  Greatly appreciated

[Enough of Strata]

Thanks Jimmy,

In relation to the Minutes of the EC Meetings – please take  time to examine the text slowly:

It says that a meeting commenced (time given), had 10 attendees, and a chairperson (the Strata Mgr) and the meeting attendees (Lot owners) –  appointed a Spokesperson for the EC (who I add was a just re-elected EC member).

In the next sentence it says:  “No meeting was held on the day as there had been no previous meeting held therefore no minutes to confirm.” 

Then the meeting was closed:

I cannot reconcile that  “No meeting was held on  the day” is consistent with the statement immediately above that a meeting was held and a spokesperson for the EC nominated.     One statement in the minutes  contradicts the other.

As there was no Secretary/ Treasurer/ Chairperson election Motion according to the minutes to me no-one therefore was elected.  

You say:  “If the EC fails to do so, an owner can apply to NCAT (under Section 19 of the Act) to order the EC to hold a meeting to appoint someone into those roles.”   That is correct, however no one previously has read the minutes carefully & understood the implications / sought to do anything about it.

So this to me means automatically that the Sec/Treasurer/Chairperson for the Owners Corp (over the last 5 years) appears to have been the Strata Manager under delegation, as no EC member was elected to any of those positions.  – Is that also your view?

If so it reflects poorly on the Strata Manager in my view, as this person should have made sure the Election motion was put as per Section 16 . 

I understand that there are no records of Executive Committee Meeting minutes up to todays date, other than those following the AGM’s. something the Strata Manager should also have been on top of but clearly was not, and is a bag of worms.

In reality what happened in the past should probably stay there but being aware of the past issues will be useful for the AGM next week.

You asked about the details of the Strata Managers Contract. It is on a 30 day notice period after about 10 years. The current EC members do not want to change, and I am not sure if it would also pass as a Motion at an EGM or the AGM 1 year  from now (It is not currently an agenda item).

My thinking is to nominate that the Executive Committee have NIL members hoping to not get the Current EC members re-elected, leave the Strata Manager the affairs and leave time to gather support for a change of Strata Manager.

Hope this is clearer.

[Enough of Strata]

From Winston:

Further to the above can anyone provide information about any AGM procedures available that can have the ECM agenda items listed to be dealt with at the AGM instead. 

While I am aware that restrictions can be placed on the decisions of the EC for the year ahead by the AGM, that may not get passed depending on who is there.

I am advised (unsure) that only agenda listed Items (Motions) can be raised at an AGM, however can the matters be effectively dealt with in “General Business” instead? (I have had conflicting views on whether this is possible).

It just seems to me that the current EC is wanting to do their thing and by-passing the owners in general.

Seeking to have no EC is also an option, however (if approved) I have little confidence in the current Strata Manager’s ability and knowledge level. My ability to be on the EC myself is a problem as I am a country located Landlord of this Sydney property.

Any input would be appreciated.    Thanks

[Enough of Strata]

Jimmy,

Thanks for your input. 

In order to get the costs (Arbitration and Tribunal related) to fall as much as possible on the party who has caused the noise problem (or from who’s Lot the noise is coming), do you consider that a By-law (special) that states that where a noise complaint had been adjudicated and lost by the owner of the Lot in which the noise originated, that the cost incurred by the Owners corporation in prosecuting the case, can be recovered from owner of that Lot.

Obviously consideration in such a By-law may need to take into account a situation where the offending Lot changes hands & may complicate the issue.

However it is a thought and may be equitable and ultimately the wrong party(s) do not end up wearing what may be a substantial bill.

(Winston)

 

   

[Enough of Strata]

While this has probably been dealt with and good advice given, it is best (in my opinion) to try to be ahead on the game where EC members are trying to not get Motions up at General Meetings, and so you proposing a motion to the Secretary of the EC well in advance of the AGM would be prudent.

Refer below:  (Schedule 2 Extract)

36 Requisition for motion to be included on agenda for general meeting

(1) Any person entitled to vote at a general meeting of an owners corporation on a motion that does not require a unanimous resolution may, by notice in writing served on the secretary of the executive committee, require inclusion in the agenda of the next general meeting of the owners corporation of a motion set out in the notice and the secretary must comply with the notice.

(2) The secretary must give effect to the requirement of the notice.

(3) Subclause (1) does not require the inclusion of a motion on the agenda of a general meeting for which notices have already been given in accordance with this Schedule but in that case the motion must be included in the agenda of the next general meeting after that.

(4) For the purposes of subclause (1), an owner of a lot who, but for the fact that the lot is subject to a mortgage or covenant charge, would be entitled to vote at a general meeting of the owners corporation is entitled to vote at that meeting.

It would be appropriate to copy the Strata Manager to make sure they get it on the agenda, if they are responsible for preparing the agenda.  The fact that in Schedule 2 36(1) states that the secretary MUST comply is important.

Hope this is also of value.

[Enough of Strata]

Peter & Jimmy:  Thanks for the input (Winston)

[Enough of Strata]

I have added Schedule 2 Clause 34 of the NSW Act which deals with what financial information should be provided to Owners for an AGM.

Quote”

34 Special requirements for notice of annual general meeting

Notice of an annual general meeting must:

(a) be accompanied by a copy of the last financial statements prepared by the owners corporation together with any relevant auditor’s report, and

(b) include a form of motion for adoption of those financial statements, and

(c) include the information referred to in section 98 (2) (d) in relation to each current insurance policy held by the owners corporation, and

(d) include a form of motion to consider the appointment of an auditor and the taking out of insurance of the kind referred to in section 88 (2) if insurance of that kind has not already been taken out, and

(e) include a form of motion for the election of the executive committee, and

(f) include a form of motion to decide the number of members of the executive committee, and

(g) include a form of motion to decide if any matter or type of matter is to be determined only by the owners corporation in general meeting.

 

While it says above in a) it states that the latest Financial Statement should be provided it does not state that the details of the payments (cheques) & Income be provided (ie the items which make up the Financial Statement.

Speaking to a couple of Strata Managers and seeing their AGM Notice documentation, they state (and provide) this material should be provided for each Expense and revenue account .

My Strata Managers however only provides one ledger account and it is a small value account, with nothing for such things as repairs / similar expenses.

Does anyone have an opinion?

[Enough of Strata]

I have sought data from the Web and from reading it conclude that the Owners Corporation AND the Strata Manager would NOT be caught by the Privacy Legislation:  –    Refer Below:

To me the basis is: 1) Under $3Mill turnover, and not specified as having the Privacy Act apply to the entity.
2) Not selling personal data for contact

3) The section below notes which entities are NOT subject to the Privacy Act (& that would cover Owners Corps)

Who is covered by privacy

Who has rights under the Privacy Act?

The Privacy Act 1988 (Privacy Act) regulates the way  individuals’ personal information is handled.
As an individual, the Privacy Act gives you greater control over the way that your personal information is handled. The Privacy Act allows you to:

• know why your personal information is being collected, how it will be used and who it will be disclosed to
• have the option of not identifying yourself, or of using a pseudonym in certain circumstances
• ask for access to your personal information (including your health information)
• stop receiving unwanted direct marketing
• ask for your personal information that is incorrect to be corrected
• make a complaint about an entity covered by the Privacy Act, if you consider that they have mishandled your personal information.

Who has responsibilities under the Privacy Act?

Australian Government agencies (and the Norfolk Island administration)and all businesses and not-for-profit organisations with an annual turnover more than $3 million have responsibilities under the Privacy Act subject to some exceptions.

As well some small business operators (organisations with a turnover of $3 million or less) are covered by the Privacy Act including:

• private sector health service providers. Organisations providing a health service include:
• traditional health service providers, such as private hospitals, day surgeries, medical practitioners, pharmacists and allied health professional
• complementary therapists, such as naturopaths and chiropractor
• gyms and weight loss clinic
• child care centres, private schools and private tertiary educational institutions.
• businesses that sell or purchase personal information
• credit reporting bodies
• contracted service providers for a Commonwealth contract
• employee associations registered or recognised under the Fair Work (Registered Organisations) Act 2009
• businesses that have opted-in to the Privacy Act
• businesses that are related to a business that is covered by the Privacy Act
• businesses prescribed by the Privacy Regulation 2013

In addition, particular acts and practices of some other small business operators are covered by the Privacy Act including:

• activities of reporting entities or authorised agents relating to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 and its Regulations and Rules
• acts and practices to do with the operation of a residential tenancy database
• activities related to the conduct of a protection action ballot.

The Privacy Act also covers specified persons handling your:

• consumer credit reporting information — including credit reporting bodies, credit providers (which includes energy and water utilities and telecommunication providers)  and certain other third parties
• tax file numbers under the Tax File Number Guidelines
• personal information contained on the Personal Property Securities Register
• old conviction information under the Commonwealth Spent Convictions Scheme
• ehealth record information under the Personally Controlled Electronic Health Records Act 2012 and Individual Healthcare Identifiers under the Healthcare Identifiers Act 2010

Who doesn’t have responsibilities under the Privacy Act?

The Privacy Act does not cover:

• State or territory government agencies, including state and territory public hospitals and health care facilities (which are covered under state and territory legislation) except:
• certain acts and practices related to Personally Controlled Electronic Health Records and Individual Healthcare Identifiers
• entities prescribed by the Privacy Regulation 2013
• individuals acting in their own capacity, including your neighbours
• universities, other than private universities and the Australian National University
• public schools
• in some circumstances, the handling of employee records by an organisation in relation to current and former employment relationships
• small business operators, unless an exception applies (see above)
• media organisations acting in the course of journalism if the organisation is publicly committed to observing published privacy standards
• registered political parties and political representatives.

For more information about who is covered by the Privacy Act, see our Privacy complaints or Privacy Topics sections and in particular Private Sector Information Sheet 12.

Privacy laws applying to ACT public sector agencies

From 1 September 2014, the Information Privacy Act 2014 (ACT) applies to ACT public sector agencies.

The Information Privacy Act includes a set of Territory Privacy Principles (TPPs) that cover the collection, use, disclosure, storage, access to, and correction of, personal information. The TPPs are similar to the Australian Privacy Principles.

The Australian Information Commissioner is exercising some of the ACT Information Privacy Commissioner’s functions. These responsibilities include investigating privacy complaints about ACT public sector agencies, and receiving data breach notifications from ACT public sector agencies. For more information, see Australian Capital Territory Privacy.

[Author]

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