RichardPhillipps said:
……. If a strata manager’s failings are such that the management of the strata scheme is not functioning satisfactorily, then there is a procedure whereby you can apply to have a managing agent appointed by an adjudicator: see s162 of the strata schemes management act………..
It isn't as simple as being dysfunctional it must be SERIOUSLY DYSFUNCTIONAL.
Mortlock and Anor v Owners of Strata Plan No 55434 [2006] NSWSC 363 (3 May 2006)
“the tribunal must makes its determination based on objective considerations and there must be objective evidence that the management of the owners corporation is seriously dysfunctional (emphasis added) before the tribunal would be disposed to make such an order under section 162.” JUDGMENT OF: Associate Justice Harrison
The curious part of the Judge’s comment is that what constitutes seriously dysfunctional is never stated.
There is always inconsistent statements from CTTT such as:
“I consider the phrase “functioning satisfactorily” refers to the achievement of the scheme in meeting the requirements laid out in the relevant legislation. This does not have to be perfect although the management must strive to meet all legislative requirements – but that does not mean perfection.“
G Meadows Member CTTT Burgess & Ors v Community Association of DP 270065 (Strata & Community Schemes) [2011] NSWCTTT 96 (16 March 2011)
From my experience the Treasurer needs to be sitting on a beach in Spain drinking cocktails after eloping with the Secretary before CTTT feel something is sufficiently wrong to use s162.
Seriously, it is not until the financial position of the Strata Plan (SP) is being seriously compromised OR the Owners Corporation (OC) is seriously neglecting its maintenance and repair obligations that CTTT consider s162. Apart from those two areas s162 applications rarely seem to succeed.
An OC can neglect so much of the Strata Act it is not funny; the idea an OC must strive to meet all its legislative requirements is rubbish. CTTT are not the strata police; there is no strata police and so an OC can essentially disregard all but the most critical aspects of the Strata Act before CTTT will take the management of the OC out of the hands of owners.
One reason why is;
The legislation has always envisaged that generally, strata schemes would be managed by ordinary lot owners for their own benefit.
J Bordon: Nulama Village P/L v Owners Strata Plan 61788 (Strata & Community Schemes) [2006] NSWCTTT 550 (25 September 2006)
The above case seems to be a principle etched in the minds of CTTT Members and the idea of taking the management of the OC out of the hands of owners, for up to 12 months, seems to be considered an extreme and radical step.
I do not subscribe to the theory that removing the owners from the management for such a short period of time is such an extreme step. Section 162 was included in the Act for a reason and I contend a part of that reason was that s162 was to be used as a corrective tool when the owners became “free spirits”.
“The Owners Corporation is not a “free spirit” to do anything that comes into the collective heads of the lot owners. ….
J Smith Senior Member CTTT Lawson & Clarke v Owners Corporation SP 61788 (Strata & Community Schemes) [2011] NSWCTTT 270 (27 June 2011)
Section 162 applications are a messy business; you need objective evidence of “seriously dysfunctional” – whatever that is. The burden of proof can be difficult to meet.
Before embarking on a s162 application you really need to weigh up the chances of success. A lot more s162 applications fail than succeed.