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Topic
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Can the EC approve for potted plants to be installed on common property in the entrance foyer. Or does it have to be ratified at a AGM.
Would appreciate if you could direct me to the part in the legislation.
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Replies
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Section 65A of the SSMA. Has to be ratified at an AGM or EGM.
Having been proved wrong the last time I questioned advice from Stevecro, I am loathe to stick my head in the lion’s jaw again.
However, what section 65A says is:
(1) For the purpose of improving or enhancing the common property, an owners corporation … may take any of the following action, but only if a special resolution has first been passed at a general meeting of the owners corporation that specifically authorises the taking of the particular action proposed:
(a) add to the common property,
(b) alter the common property,
(c) erect a new structure on the common property.
Is the placing of planters “adding to common property” in the terms of the Act? If that is the case, it clearly states that a special resolution must first be passed.
Frankly, I would have thought a decision by the EC would have been enough unless the planters were a permanent structure that requires building work.
But then I have been wrong before. However, if I am right, a majority of owners at a subsequent general meeting can order them to rescind the decision and remove the planters.
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.
I’m not in NSW so I am making a general point here.
I think successful management requires a little tolerance of ambiguity and judgement. If there is a general maintenance budget or a grounds budget line and the cost is small and the pot plant could be put against one of those and the EC would not be going over budget and the EC is confident that there would be general support for making the lobby a bit more pleasant with a few pot plants, then I think it should do it. At the next AGM the treasurer can write a plain english report explaining what the various lines in the financial statement actually mean and what they covered in the past year and what things might be done against those items in the coming year.
If the cost is not trivial in the grand scheme of things then put it to the next AGM.
For some things it is a matter of judgement. In your particular OC, will the EC be praised for having got on with some beautification rather than endless talking about it, or will they be condemned by a loud pedant who says that buying a few pot plants for inside rather than outside should not be counted against the admin fund line item for ‘gardening’?
Jimmy I never said that you’re ‘wrong’. I am just giving my point of view that’s all. You could well be right, I just see that if something isn’t currently there in existence, then it can be interpreted as being ‘adding’ to common property. Whether the structure is permanent or not does not matter, and the Act does not specify whether the structure is to be permanent or not.
Under 65A is does say ‘For the purpose of improving or enhancing the common property’. To me adding anything to common property (that isn’t a part of repairs and maintenance) comes under s65A. Pot plants in my view are improving or enhancing (beautifying) the common property, hence would not come under repairs or maintenance s62.
I guess I take this view from living in a Strata Scheme for many years, there is always one owner or a group of owners who do not want to spend a cent on ‘improving or enhancing’ any part of common property. They don’t see the value in it, which I am against, as it can clearly enhance the value of the scheme.
I can see the logic in all the perspectives so far expressed, and whilst we can logically assume that whatever2008 doesn’t agree with the E/C’s decision re the pot plants, we don’t know how much of that disagreement is due to the amount of expenditure involved, how much is due to the possibly autonomous nature of the E/C’s decision to make that purchase – and if that decision really matters in the big-picture scheme of things.
Under either circumstance, I’m of the opinion that the E/C’s actions would need to be more in accordance with the budgeting and expenditure provisions of the Act than with Sect 65A, where I’ve always interpreted additions and alterations to the Common Property as being those of a type that, if undone, would result in some rectification being necessary in order to return the Common Property to its original state, and I doubt that would apply to potted plants.
On the basis of an absolutely pedantic expenditure perspective and my assumptions about whatever2008‘s position, then the purchase of the pot plants should have been a sinking fund expense, and unless a $ amount is shown in the current budget for an item that relates to the acquisition of personal property by the Owners Corporation (O/C) or to a closely related matter, then the expenditure on the potted plants would be contrary to Sects 75(2) and 71(1)(a).
Although as Peter has observed (post #4), the E/C could assert (imo incorrectly) that its expenditure was under a vaguely related matter such as the all-encompassing “gardening”.
@Stevecro said:
Jimmy I never said that you’re ‘wrong’. I am just giving my point of view that’s all.I was referring to an earlier discussion about EC agendas and how you can only make decisions on items that are listed on them. You were right, I was wrong, hence my reluctance to glove up and get into the ring again.
On the general discussion here, I am drawn to Peter C’s comment: ” … will the EC be praised for having got on with some beautification rather than endless talking about it, or will they be condemned by a loud pedant who says that buying a few pot plants for inside rather than outside should not be counted against the admin fund line item for ‘gardening’?”
In my estimation, 99 percent of strata schemes are non-compliant, admittedly in some small aspect of the law, 99 percent of the time. It doesn’t bother me when ECs, with the best intentions, go ahead and make decisions that stricly speaking, should be made at a general meeting.
If enough people are sufficiently upset, they can demand a general meeting, have the decision overturned and, while they’re at it, sack the executive committee and replace them with non-spending stratacrats and instruct them to pursue the hapless EC members for the cost of the decision they may not have been entitled to make.*
Otherwise, you wait for a year and make all your decisions at once.
Given that 99 percent of strata residents don’t read their EC minutes 99 percent of the time, I think any committee that just gets on with stuff is a good thing … provided it’s to the benefit of the whole community.
*Pursuing EC members for decisions made in good faith won’t fly anyway. You would have to prove they knew they weren’t entitled to make the decision and did so for some personal gain.
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.
I hope that you weren’t aware of that further detail at the time of your first post, because if you were, then fair dinkum…. what were you worried about?
OK, but it would be a lot easier on those here who are trying to advise you if the story wasn’t revealed drip by drip.
Anyway, on the basis of all that advice in the context that you’ve now revealed, I’d be comfortable with letting your resident complain all they like because there’s been no change to the Common Property within the scope of Sect 65A and there’s been no unauthorised expenditure (in fact there’s been none at all).
My faucet is now closed!
Fine then – put it to the AGM and have it confirmed that that is what the majority wants.
Personally I would not want pot plants in our foyer, but that’s our foyer.
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