EC Parking on Common Property

Whilst what happened is not entirely clear to me, I can advise that:

1) The Agenda for a General Meeting cannot incorporate “General Business”, simply because such an Item may include matters on-the-day that some Proprietors (such as yourself) would attend the Meeting and vote upon if they knew the detail.

2) Proprietors cannot be given Exclusive Use of Common Property unless a Special Resolution is passed at a General Meeting (75% + must vote in favour) AND an Exclusive Use By-Law is registered with the NSW Land & Property Management Authority (the old Dept of Lands).

I would advise the Secretary of your Executive Committee of the above, and request that the illegal resolution that created your problem be rescinded.

If you're in NSW, contact the Office of Fair Trading whose Specialist Strata Support Group can tell you how to apply for a resolution to be declared void.

asalsa6 said:

At an AGM a couple of years ago, it appears that the owners that attended, voted that the Chairman be given exculsive use of common property to allow her or whomever she chooses, to park their car. This was done in General Business. There was certainly nothing on the notice sent out that this would be there.

Thanks

Based on the information given; what a complete outrage! If the OC thinks it can do what it has done then the OC has a very poor understanding of what it is to be strata.

As stated by “whale”; there is no such thing as general business for an AGM. The agenda for an AGM is fixed by the legislation and introduced matters are completely out of order. Refer to cl 35(3) of Sch 2 of the SSMA;

35 (3)  A motion must not be submitted at a general meeting unless notice of the motion has been given in accordance with this clause or the motion is a motion to amend a motion of which notice has so been given.

In simple English; a motion should not be put to a General Meeting unless proper notice has been given that the matter is going to be dealt with. Proper notice would involve a duly requisitioned motion (cl 36 of Sch 2) being put on the notice which is sent to the owners and gives the owners 7 clear days notice of the meeting and the business of the meeting (cl 32 of Sch 2).

Any so called “resolution”, or minutes from an AGM, that relate to the matter should be ultra vires and have no force; i.e. it was beyond the authority of the OC to do what it did and so what it did has no effect.

There is no power or authority to introduce matters to an AGM and make decision on matters not on the agenda – it is that simple. If an Adjudicator did not declare the matter ultra vires then it is very likely the “decision” of the AGM would be invalidated (s153 SSMA) given the procedural failures that led to the decision.

It is a very sad situation that the AGM believed it could do what it did. AGMs are a formal meeting governed by statute. They are a different meeting to the types of meeting most people would generally be involved with.
If the managing agent was present at the AGM then it may be wise to seek someone a little more professional. If the agenrt was involved in preparing the AGM minutes then alarm bells should have rang when he/she noticed business was introduced.
This type of matter makes me wonder what else is going on that should not be happening and that means loss of reputation for your OC. Loss of reputation is a matter OCs should be wary of.

As stated by whale, the owners would need to pass a special resolution motion to create a by-law to give exclusive use or special privileged and then register the by-law (s52 SSMA). 

In this case the likelihood such a by-law could be created is low as the by-law would put the beneficiary of the by-law in breach of s117 of the SSMA.
SSMA s43 (4)  A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.

If you read s117 of the SSMA;

117 (1)  An owner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a lot must not:

(a)  use or enjoy the lot, or permit the lot to be used or enjoyed, in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or

(b)  use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or

(c)  use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.

It is clear that the people currently blocking your garage are in breach of the Act — their bad luck; if you would like to tell them that.

You could politely ask these people to cease to park in your way or you may have to seek an order from an Adjudicator for their breaching the Act.

Hopefully everyone will realize the error of the AGM and things will resolve themselves simply otherwise this should be a simple matter for the strata dispute resolution process.

Whale said:
If you're in NSW, contact the Office of Fair Trading whose Specialist Strata Support Group can tell you how to apply for a resolution to be declared void.

I know people who work in this section. Trained is not really an appropriate term. My personal experience with this section of OFT is that you sometimes get good advice, other times not so good. I have taken it upon myself to ring several times on the same matter so as to talk to different operators and i have been given conflicting advice.

The first step of training in this section is to give the “would be operator” a copy of the strata living guide – the training doesn't get much more intense after that so their knowledge is fairly general and dealing with matters that go beyond being common or simple is not their forte.
If you do ring them ask for Angus – he is pretty good.