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20/04/2013 at 8:57 am #8618
Interim Orders are in place to install new windows by July 3, 2013 because one window has already fallen to the ground from the 6th floor and others have been identified as at risk. The EC are spending owners money to fight this Order.
The Orders state that the windows be replaced in the units ending in 6 but, we only asked for the living and south facing windows to be replaced. Can these orders be amended to more accurately reflect the request?
The living room faces a balcony and the owners want to enclose. The wall facing the balcony is lot owned. Owners agreement to enclose took place at the 2010 AGM and we commissioned a lawyer to put the paperwork in order – he was adamant that we did not need a by law for exclusive use of common property to enclose the windows and wrote the minutes to reflect the owners wishes. The Strata Manager is adamant that the CTTT orders will be revoked because this is not clear.
Given the dangerous situation with the windows can the Orders be amended to reflect the living and south windows only and that appropriate paperwork be written to give owners exclusive rights to the balcony? thanks, Jan
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21/04/2013 at 12:05 pm #18300
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.
21/04/2013 at 4:46 pm #18302Thanks for your response – much appreciated. I hope these answers help.
The 4 unit owners most affected by the delay in installing the windows including myself applied to the CTTT.
We all want to enclose the balcony and permission for this has been given by North Sydney Council in the Development Application.
Yes the wall and window facing the balcony is part of the lot and yes the lawyer did not want to write a by law. The adjoining balcony is common property.
We want to enclose our balcony but the new SM says we must get a by law. The SM says because there is no by law the CTTT orders will be tossed out and also because the orders include the bedrooms which are not in contention it will be thrown out.
I don’t know if the strata plan shows anything about the ownership but we have always been told that because the building was built in 1963 the window / wall facing the balcony is lot owned.
Sorry I have confused you. I am stressed to the max over this.
thanks,
Jan
22/04/2013 at 8:33 am #18303A couple of things
1) The SM works for the OC and cannot tell the OC what to do (they can only advise). Is it the EC or the SM fighting this, if SM tell them to stop, if EC get a OC to vote against further action.
2) So long as the lawyer has put in writing that it is unnecessary to create a bylaw he will know the law much better than the average SM.
3) Look on any plans you have to determine if the balcony is common property or lot property. Thick lines denote Common, thin Lot.
For an example of this see here
It show an example of a balcony as common and lot property and how it is denoted (Refer to the building format plan ONLY)
BEWARE THIS IS QLD RULES SO IGNORE THE DEF OF COMMON AND LOT PROPERTY AS THEY DON’T ALWAYS APPLY IN NSW BUT THE DRAWING RULES DO.
22/04/2013 at 10:39 am #18304I 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).
27/04/2013 at 6:35 am #18327Thank you Whale and Kiwipaul, We have had a set back. Our EC consists of 5 people and 3 of them have now decided that on behalf of all owners the original agreement at the 2010 AGM should be revoked and as they have the majority vote they have decided to hire a lawyer on behalf of the OC to fight the CTTT orders. They called an EC meeting and proposed this but the SM did not call for a vote – we just discussed the problem. So on Tuesday they hired a lawyer. Now more than 1/3rd of the 36 owners have written in to the SM to say that they oppose to this spending of owners money as this does not represent some their view.
What is our legal position here.
1. Can these 3 EC members hire the lawyer if no vote was called for at the meeting?
2. If more than 1/3rd of the owners object to this spend must they stop?
Thanks for your advice, Jan
27/04/2013 at 1:08 pm #18331Jan – 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?
27/04/2013 at 4:06 pm #18333Thanks, It doesn’t say anything in the orders about mediation – just to install the new windows by July 3. The ‘other side’ are spending owners money on legal fees to try and get the orders revoked – isn’t that unfair to the side that is living in the hell and wants the windows installed as per the 2010 AGM.
There is an EGM called for May 3 but it is too late now to put a motion to that meeting that owners money not be spent on legal fees hence the barrage of letters from owners to the SM to say that they should not do it. Someone told me they can be sued individually for misappropriation of owners funds if so many owners object and they ignore them.
You are right our EC is badly broken. The treasurer is even stopping payment of some invoices.
It’s a nightmare and extremely dangerous as the rivets in the windows are failing and two windows have fallen out, one to the ground and one inside a unit and another one is about to fall out and was identified in the orders as dangerous and guess what – nothing has been done about this window since it became known in January. Good stuff for a journo to get a hold of.
27/04/2013 at 11:43 pm #18341I f I were in your shoes I’d be telling the EC to get on with it or you will be applying to the CTTT for the staturotry appointment of a strata manager to take over the running of the building. That means no EC and no Owners Corp plus higher SM fees until such time as the strata plan can manage itself again
The current SM may even volunteer to do the job if they feel they are being prevented from doing the right thing by the EC.
This strata plan seems like it is in breach of three of the four conditions (below), each of which can be grounds for a statutory appointment on its own. I would send the EC a strongly worded letter, signed by as many supporters as you can muster, pointing out the danger of being put into statutory management if they don’t get on and do the work.Here are the circumstances under which a strata manager can be appointed by the CTTT:
Order may be made on application in certain circumstances
An Adjudicator may make an order under this section (162), on application, but only if satisfied that:(a) the management structure of a strata scheme the subject of an application under this Chapter is not functioning or is not functioning satisfactorily, or
(b) an owners corporation has failed to comply with a requirement imposed on the owners corporation by an order made under this Act, or
(c) an owners corporation has failed to perform one or more of its duties, or
(d) an owners corporation owes a judgment debt.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
28/04/2013 at 2:33 pm #18348As Whale has pointed out, the EC “decision” to get legal advice was not valid. It isn’t clear from what you have said but the proposed resolution would have had to be put on an agenda, and notice given, and then a vote taken at the EC meeting on that proposed resolution.
Notice has to be given of EC items, because that gives the other owners the opportunity to give written notice that they object to the motion (at least 1/3 of owners). Where this is done, any purported resolution is invalid.
In any case, it seems that the motion wasn’t put to a proper vote.
What I would be doing is serving them with a written notice, signed by all of the owners who object, that you consider what they doing to be invalid and that the EC members will be held personally liable for any of the legal fees incurred. In the letter set out the reasons why it is invalid. Serve that on the EC members, the strata manager and the lawyer who is acting for the EC. In all likelihood that should put a stop to it, at the very least the lawyer would think twice.
Some years ago some members of the EC went off on a frolic of their own, and contracted with someone for $10,000 worth of work (it wasn’t legal work). When the time came to pay it I refused to authorise it, because there had been no resolution, and they never tried that again.
I agree with Whale and Jimmy, your scheme sounds seriously dysfunctional, you need to make an application for compulsory appointment.
28/04/2013 at 4:56 pm #18351Jan, 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
30/04/2013 at 8:15 am #18359Thank you, thank you, thank you. I will get onto it right away and you are right I am very stressed. I am facing around $8,000 of dental fees for this as I have started to grind my teeth at night and have cracked teeth. Thank you all for your good advice. I will let you know how I go. Jan
08/05/2013 at 1:26 pm #18416Whale, Thank you very much for your fabulous assistance in this matter. We had an EGM and part of the problem got solved – ie; the south facing window replacement go ahead. And, unbelievably the naysayers voted for this – work that one out!. We also got agreement that the east facing windows be scoped and costed. And, because half the meeting went home early the proposal to complete the east facing units motion got up but I don’t believe that the naysayers have gone away yet. The CTTT orders still stand. Thank you CTTT orders – without that I don’t think we would be even remotely where we are today. Thanks again, Jan
09/05/2013 at 11:29 am #18422On behalf of KiwiPaul, Scotty, Jimmy T and me….thanks for the feedback; sounds like a good result!
09/05/2013 at 6:26 pm #18425That is great news, long may it last!
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