- This topic has 25 replies, 8 voices, and was last updated 7 years, 5 months ago by .
-
Topic
-
The OC that I chair is having a committee meeting soon.
One of the committee members wants to add to the agenda:
That the OC contact the council re:
- Street lighting.
- Fading on-street parking line markings.
- On-street tree protection. They might be damaged eg by trucks when parking.
While they are all reasonable matters, I wonder if they are outside an OC committee’s (and even an OC’s) jurisdiction? Neighbour properties would be affected by the issues too – there are many properties in the street.
When I look at the OC Act (at least in Victoria) it’s pretty clear that an OC’s primary duty is to common property. The very creation of an OC is due to the fact that common property exists when the strata plan is first registered. I can’t see that any of the matters relate to an OC’s duties around common property.
And I’m not even sure that an OC committee alone has the right to represent owners on matters that fall outside the OC Act. An OC is not a rate payer and does not vote in council elections. But individual owners are and do.
What are the opinions? Can OC committees represent all the owners on matters that are essentially neighbourhood issues? And if so, should they? I’m concerned that the committee could be overstepping its authority.
-
Replies
-
I take a different view for two reasons. The first is that the strata committee represents a powerful and considered opinion. The matter has been discussed and a consensus reached so it can’t be so easily dismissed as the rantings of your run of the mill, common or garden, loony grumbler.
Secondly, after years of telling your residents that you (collectively) know best and that you will look after the best interests of the building and it’s residents, it’s not helpful to say that anything outside the front door but in the immediate vicinity is no concern of the strata committee’s.
In most council areas the opinions of strata committees are taken very seriously at council (although they are by no means the deciding factor on issues). The corollary of that is that the absence of an opinion may make the local authorities feel that it’s not such a big problem after all (see previous references to individual rantings).
The strata committee is not a law unto itself. It is representative of ALL owners (or it should be). It is not an executive – which is why they changed the name – it is supposed to be representative.
The voice of a powerful body can say a lot, but its silence speaks volumes.
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.
My two cents worth … and from experience …. after successfully getting a Material Change of Use development knocked back that adjoined my scheme in QLD due to all of our owners writing separate letters, sometimes the ‘thick file’ principle works.
It can be more effective if Council gets lots of individual letters of complaint rather than one letter, even though the one letter represents many individual owners. When the statistical ‘wonks’ get their hands on the letters it is often times the total numbers of letters that is often counted not the numbers of people represented in the letters.
If the Committee agrees by Resolution at a Committee Meeting, maybe the Committee may like to draw the Owners’ attention to these matters via the Committee Minutes and might like to include contact details for the relevant person on Council should the individual owners wish to follow up on this matter themselves. This approach should be deemed to be legal under the Act.
Why not try both!
I don’t see why the committee could not send a letter saying whatever is the considered opinion of the members of the strata committee. That would not be purporting to know the views of all members of the owners corporation but should carry some weight nonetheless as a group of people who pay attention to local matters.
I recall an occasion when an owner wrote to our executive committee wanting us to object to the ACT government’s proposal to install a joint fire and ambulance facility about 1.5km down the road from us. We did not know what owners might think of it and we didn’t ask. Most committee members gave this NIMBY viewpoint little attention. It did however prompt me to send a personal submission in which mentioned my membership of our executive committee and I said that I expected that many residents would be pleased and reassured by the close proximity of such emergency services, particularly some of our elderly residents.
The emergency services facility has since been built and I have related this tale to some of my neighbours since. All I have spoken to agreed that the committee was right to not act the bizarre request that we object to a facility that many would find reassuring to have close by.
It doesn’t have to be one thing or the other – both an official OC response and individual owners’ responses are appropriate and helpful.
But for a strata committee to say that this is beyond their responsibility, because there is nothing in the law that says it IS their responsibility, seems like the easy way out.
That said, there’s nothing to stop a committee discussing an issue and deciding not to get involved.
But say it wasn’t lighting but, say a new late night bar or a brothel on the corner? Would you leave it in the hope individual owners had heard about it and wanted to object?
A few years ago there was a major development planned for the building across the road from the one next to ours. The committee next door decided it wasn’t their job to say whether or not it affected their residents – it was up to individuals to respond.
It would have affected a lot of residents, mostly those on the lower floors. And what do you know – all the committee members owned flats on the higher floors and it wouldn’t have affected them.
Also, the investors didn’t even know because the tenants didn’t pass on the “junk mail” from the council.
When our committee raised the issue with the council (some of our residents would have been affected) they were told that nobody in the building directly opposite had complained so what where we complaining about?
It was only when we alerted residents in the building next to ours that they got themselves organised. Meanwhile we put together a very strong argument with letters from individual owners and objections from our committee and they cut the proposed development by about 10 floors (if I recall correctly).
You would be astonished how many people think a problem they are confronting is so bad that someone else must be complaining too. The number of people who are too busy, or don’t want to get involved, or don’t know what to do or say soon mounts up.
If there is an issue that affects your neighbourhood, I believe the committee should write on behalf of all owners (some of whom aren’t residents) but also encourage residents – owners and tenants – to write to the authorities too.
There may not be anything in strata law that says you should do this – but there isn’t anything that says you shouldn’t. It’s all about being part of your own community and the larger community around you.
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.
@Austman said:
And we haven’t been telling our residents for years that we know best on neighborhood issues.That was a generalisation and I was speaking figuratively. But the fact is that committees are there to represent the views of the owners corporation – that is all owners. And generally most people will accept that … until you decide something they don’t like.
I question if a strata committee alone is even legally allowed to represent all OC owners on neigbourhood issues. Is it overstepping its authority? I suspect it might be.
I really don’t think so. It’s certainly not breaking any laws or even accepted protocols. It’s up to individual committees. But our committee makes representations on everything from the flower beds outside the building to the spread of Airbnb. Are they wrong to do so?
If enough owners disagree, they can have the decision overturned.
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.
Re the legality question: I expect most states have provisions like the ACT. Here, in the absence of a general meeting resolution directing it, the executive committee “exercises the functions of the Owners Corporation as it considers appropriate”. I think it is reasonable to consider it a function of the Owners Corporation to comment on development proposals in the surrounding area, just as any other land owner might express its interest in nearby proposals.
So, if a general meeting resolved that the committee should respond in a particular way to a development proposal in the vicinity, then that is what it must do. In the absence of such a resolution, the committee can represent the interests of the owners as it considers appropriate.
If committee members are feeling unsure that they are accurately representing the views of owners, they could make a point of asking the next 10 people they meet on the stairs or in the car park. It shouldn’t be hard to quickly get a feel for how residents feel.
A subject close to my heart.
As background – our NSW community of 9 strata schemes (representing about 1400 lots) has an ‘executive committee of 9 persons’ which is in the habit of making submissions to council and other government agencies on behalf of the community.
Since, these persons are also most likely to be the first to know what is going on in the wider community they should be proactive in generating community consultation and feedback or be silent (my personal opinion).
Unfortunately, the majority of members of this committee are developer influenced/related and are not only resistant to an inclusive approach they may actively support certain issues – ranging from short-term letting and dog walking to increasing building heights from 8 levels to 30!
Without consultation with the wider community, this committee is acting without ‘authority’ – in my view.
As well, this ‘authority’ trickles down to some individual strata committees who then feel they can duplicate this and make further submissions to the relevant bodies without consultation with owners in general.
Unfortunately for me, as Secretary of our 245 lot scheme, I am often the first to be pressured to take a stance (meat in the sandwich so to speak). One owner will want their committee to make representation on behalf of all owners, another challenges our right to do so.
Austman – my experience tells me that your committee is taking the right approach by placing a motion on the next meeting agenda. It is now up to you and other owners to have your say.
If enough owners agree with your point of view, then I doubt the committee would adopt the motion. If no-one objects, then the committee will likely feel it is ‘authorised’ to make an assumption that owners approve…….?
@Austman said:Puddn said
Without consultation with the wider community, this committee is acting without ‘authority’ – in my view.Most strata committees are given the authority to act on behalf of the Owners Corporation except on specific matters that require a special resolution or a unanimous vote.
Is expressing an opinion “acting without authority”?
Does this prevent individual owners from expressing their opinions?
Does it prevent a majority of owners from saying “hang on – we are rescinding that decision to offer that opinion”?
The answer to all of those is No. The way strata committees work is to allow the community to get on with running itself without having to stop and hold a general meeting every time there is a decision to be made.
There are checks and balances there to allow the strata committee to make decisions that need to be made with the final say always resting with the owners if they feel the committee has made the wrong choice.
To limit the committee to only decisions that are specified in the law is to create massive loopholes through which the unscrupulous can exploit their neighbours.
Should strata committees even discuss short-term letting? It doesn’t say in the Act that they can or should. How about installing solar energy? Can’t see that anywhere in the Act.
OK, that’s all stuff inside the building so it would come under management. But let’s say the council is about to change a bus route and move it away from the building to somewhere less convenient? Is the strata committee expected to stay silent?
Or how about if a developer wants to put a sign on a crane that will shine into apartments all night. If I were an investor and my tenants had decided it was easier to move out than complain, and my strata committee hadn’t bothered to raise an objection, and my new tenants complain about the light from the crane … I would be mightily annoyed at my committee for doing nothing.
The crane sign is a real and recent example in my building. The committee objected to a proposal to install a brightly lit sign on a crane just across the street, they also encouraged owners to write with their own objections. Council refused permission for the lit sign.
Was the committee exceeding its authority by doing what it did? Or would it have been derelict in its duty by doing nothing?
Finally, regarding previous comments about strata committees using their power to support developers, the problem there is a stacked, pro-developer committee and that can be solved relatively easily with a little organisation and a lot of determination.
But if owners can’t be bothered to protect their own interests, that’s no reason for denying that option to everyone else.
A correctly run committee with proper agendas and minutes is totally accountable to the building’s owners. If the committee is not properly run, then that’s a whole other issue.
Expressing an opinion in good faith on behalf of the majority of residents – not just owners – is not exceeding the committee’s authority … it’s recognising that committees have responsibilities that are neither defined nor restricted by the Act.
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.
@Austman said:
Thanks Sir Humphrey. That’s the sort of reference I’m looking for. I’m a strata owner in the ACT as well. But just above that, in the Unit Titles (Management) Act 2011, is a list of committee functions. It’s pretty clear to me that there are considerable limitations. And Part 3 Functions of owners corporations lists exactly what an OC’s functions are that committee can exercise. Again they are quite limited.Yes, the ACT’s UTM Act Part 3, s.16(1) lists the functions of the OC as follows:
An owners corporation for a units plan has the following functions:
(a) the enforcement of its rules;
(b) the control, management and administration of the common property;
(c) any other function given to the corporation under this Act or another territory law.
And then Part 3 and elsewhere in the Act provides more detail. I would argue that s.16(1)(c) covers comment on development proposals in the neighbourhood. There will be other territory law to do with development proposals and consultation with anyone with an interest in nearby property. The OC is a (legal) ‘person’* with an interest in nearby development and entitled to comment. Even beyond any formal development consultation process, there would be ordinary legal rights to free speech which can be exercised by the OC as much as anyone else.
Obviously, the OC should refrain from expressing an opinion on some matter not even remotely linked to the management, use or enjoyment of its property. On the other hand, I think it should comment if, for example, there is a proposal that would result in a direct effect such as extra noise or shading of the property or an indirect effect such as a loss of amenity to the owners through redevelopment of nearby open space or other local facilities enjoyed by the owners.
*s.8 and 9 provide the OC with the characteristics of a ‘legal personality’. In a recent matter at the ACT Magistrates Court, the magistrate strongly hinted to me that I needed to amend our application (I am not a lawyer but I was representing our EC). We were asking for an enforcement order that would enable the EC to enforce a Tribunal order. A unit owner had been ordered by the Tribunal to remove an unapproved structure on their unit by a certain date but had not done so. Now we wanted authority for the EC to enter the unit and remove the structure. ACT Magistrates Court rule 2442 said the Court could appoint a ‘person’ to do something that another person had been ordered to do but failed to do. What we needed to do was establish who was the legal personality to whom the rule could be applied. From the UTM Act the OC was a ‘person’ that could be authorised ‘to do a thing’, the EC was not a ‘person’. The order would authorise the OC to do that which the unit owner had been ordered to do although it followed that it would be the EC that could exercise that function given by the court order. It further followed from default rule 10, which our OC had adopted, that the EC could exercise that function by appointing a representative (IE an appropriate tradesperson) to do the actual removal of the unapproved structure and making good.
- You must be logged in to reply to this topic.