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How bad does a Strata Manager have to be before Fair Trading NSW cancels their licence ?
My husband & I live in a complex consisting of 59 town houses & villas across 4 Strata Plans (SP) with an over arching Community Association (CA) & a Community Management Statement (CMS).
My husband applied to the CTTT (now NCAT) on behalf of our strata plan for the dismissal of our former SM on 21/11/2012. The CTTT dismissed our former SM for failing to follow up warranty work & we were deemed to have dysfunctional management and appointed another SM as administrators for a period of 12 months from March 2013. Two other strata plans also applied to the CTTT but their applications were dismissed even though they had the exact same problems.
One of them finally had the services of the former SM terminated in February 2014 with the assistance of an independent Property Consultant who is currently assisting the remaining two in terminating the services of our former SM. The three schemes had lodged requests for general meetings in the past to terminate the SM services and appoint another SM & these requests were ignored.
My husband also lodged a complaint with Fair Trading NSW in December 2012 about the lack of service & the behaviour of our former SM. The initial investigation & audit conducted by the Consumer Protection Officer found no fault with the former SM despite the fact they refused to supply documentation such as Strata Rolls, Agency Management Agreements, Financial Statements, Cleaning & Gardening Agreements etc.
Upon receipt of the decision by Fair Trading NSW in December 2013, 14 owners across all 4 SPs lodged complaints with the Minister for Fair Trading NSW. We have all been advised that this matter is currently being investigated. The behaviour of our former SMs is unconscionable, they have multiple & serious breaches of the Act, misappropriated funds, incited violence, bullying & intimidation & used misleading correspondence in order to obtain funds via deception.
In January 2013 the former SM sent a cleaner to our home, having given that person our name & address stating that we had stopped payment of the cleaners fees. We explained that it was impossible for one owner to take such action. This did not stop this person from demanding money with menaces & threatening my husband & I.
In August 2013 the former SM organised a confrontation between the Director of the Cleaning & Gardening Co. and my husband and I during which my husband was assaulted. The Police laid assault charges against the director of the Cleaning & Gardening Co. who pleaded guilty in Court in March 2014 & received a 2 yr Good Behaviour Bond and a one year AVO not to go near my husband or me and our property.
The former SM still manages the Community Association (CA) however the CA has not been cleaned or maintained in any way since September 2013. Two of the strata schemes have 55.7% of the unit entitlement allocation but the former SMs refuse our requests to convene a CA meeting to terminate their services as Managers.
The office claims that the Licensee is on hoildays and nothing can be done, however, during the alleged holiday he emailed one of the other SPs to convene and executive committee meeting an extraordinary general meeting.
This matter has also been referred to the Minister who has referred the matter to Fair Trading. Unfortunately Fair Trading are giving an exceptional amount of latitude to the former SM whilst requesting hundreds of pages of documentation from owners which Fair Trading appear to disregard.
The former SMs have advised Fair Trading NSW they will commence the process of resigning as Managing Agents of the CA but refuse to provide a time frame for this process. We are now in the process of convening our own CA meeting under the guidelines set down in the Community Land & Management Act 1989, Schedule 6. Other than this what can we do ?
The Estate is also in dispute with the developer who refuses to rectify structural faults with a the properties of which there are many. The Estate is still within the 6 year warranty period. We have engaged a Strata Law firm & an independent Engineer/Property Inspection Co. A Building Inspector from Fair Trading is due to inspect properties over the next few weeks.
How much longer are owners expected to tolerate this absurd situation & how much money are we expected to spend to resolve the matter. How long can Fair Trading NSW allow the former SM to continue to drag this matter out without any penalties being imposed.
We have asked the Minister to cancel their licence but will this actually occur? We have documentation to support all of our claims. Any advice or guidance will be appreciated as we are at a loss as to what further action to take apart from civil action which is time consuming & costly.
To date this sorry saga has taken up over two years of our life how much more do we have to tolerate?
This is an appalling state of affairs and I have asked Fair Trading for a response. I will keep you posted. – JimmyT
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Here is a set of questions I put to Fair Trading on this issue and their spokesperson’s answers.
- How can NCAT/CTTT replace the same strata manager from some schemes in a development and not the others?
Each case is considered on its individual merits and the evidence produced by the parties. If a party considers the Tribunal made an error in law or made a decision outside its jurisdiction or did not provide procedural fairness, they can explore their appeal rights as a way to seek redress.
- How bad does it have to get before a strata manager loses their licence? Even a conviction for violence and threatening behavior isn’t enough.
Strata managers are licensed under the Property Stock and Business Agents Act 2002, and section 191 of the Act sets out the grounds for a notice to show cause to be issued to a licence holder or former licence holder.
Licensing forms require criminal convictions to be disclosed and some convictions, such as dishonesty convictions might automatically disqualify a licence holder from renewing a licence. Fitness and propriety of an agent must also be considered. A conviction for violence or for threatening behaviour might be sufficient to stop someone renewing their licence or may be grounds for disciplinary action but the circumstances of the matter will need to be taken into account by Fair Trading.
- How many strata managers have been de-licenced in the past two or three years? I have not heard of one.
Strata managers are licensed real estate agents. Data is not kept to distinguish one type of agent from another. Fair Trading reports on its web pages on a quarterly basis about disciplinary action taken against real estate agents. Many agents and agencies have had their licences cancelled in the last two years, but their class of licence is not reported and cannot be ascertained
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.
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