Executive Committee and enforcement of by-laws

Ok there are many issues here. Firstly the EC cannot make a decision on an item unless it is listed on the Agenda of an EC meeting. The EC can discuss whatever they wish, but discussions are not decisions, and you cannot turn a discussion into a decision unless it is clearly listed  as a motion on the Agenda of that meeting,  a lot people tend to confuse the two.

An option would be to try calling an EGM; or if you have an AGM coming up, submitting a motion to be included on the agenda of that meeting. Any decision that is made in regards to the illegal works can be decided there, and any decision that is made at a General Meeting will overturn the EC decision not to pursue this matter.

Other than that, you could apply for mediation against the OC for not pursuing a breach of by law or mediation against that individual owner.

Well I am not sure, however from my point of view, if the EC didn’t have to hold meetings to make decisions, then the SSMA wouldn’t mention that you must give the OC 72 hour’s notice for EC meetings with an agenda posted on a notice board or sent out to all owners etc.

Also if the EC is able to make decisions freely outside of EC meetings it would defeat the purpose of the following clause in the SSMA 1996:

11   Decisions of executive committee

 (2)  A decision of an executive committee has no force or effect if, before that decision is made, notice in writing is given to the secretary of the executive committee by one or more owners, the sum of whose unit entitlements exceeds one-third of the aggregate unit entitlement, that the making of the decision is opposed by those owners.

Owners would not be aware of any upcoming decisions, hence would not be given the chance to object to motions on the agenda as shown above.

Another point to add to the debate is that the SSMA says that even though EC meetings can be held in writing, the EC is still bound by the same processes as if holding a ‘regular’ EC meeting in person:

10   Voting in writing by members of executive committee

(1)  A resolution is taken to have been validly passed even though the meeting at which the motion for the resolution was proposed to be submitted was not held if:

(a)  notice was given in accordance with clause 6 of the intended meeting, and

(b)  a copy of the motion for the resolution was served on each member of the executive committee, and

(c)  the resolution was approved in writing by a majority of members of the executive committee.

(2)  This clause is subject to clause 11 (2).

I guess the one of the main purposes of holding EC meetings is for transparency to the rest of the OC. If decisions were just made at will outside of EC meetings, then the rest of the OC would not be aware of what decisions are being made within the scheme they are living in and what their money is being spent on. Also it would make for a dysfunctional EC if certain members got together and excluded other members of EC and starting making decisions in little groups; spending the OCs funds as they wished.

There is no such thing as ‘general business’. I guess some schemes can add their odds and ends here, however from my point of view, ‘general business’ should only include a discussion, not decision making. Again the reason for this is transparency. If you have a title on the agenda saying ‘General Business’ and no motions listed under it, then it can be taken that no other decisions are going to made at the EC meeting, hence as above the OC would not be given a chance to object to any decisions made through ‘general business’. I am guessing this would also apply equally to all General Meetings.

The only exception that I can think of where the EC would NOT have to hold a meeting to make a decision would be in an emergency. These decisions would be very rare. E.g. A pipe bursts causing significant damage to the rest of the building, the EC simply needs to make a decision to get the repairs done.

This is just my point of view, however I may be wrong, we are all entitled to our opinions and I respect all other opinions on here.

Sorry all; I’m migrating north with Mrs Whale at present, and haven’t had much time to check flat-chats!

I agree with Stevecro on this one. My rationale is that the Agenda of an E/C Meeting is required to be provided 72 hours in advance so that Owners know about the matter/s to be discussed there, so that those such as Felix who have an interest in how something may be resolved can attend and perhaps ask to be heard, or even so that ≥30% of Owners (by unit entitlement) may actually veto the making of a decision on an item altogether.

None of that can occur without a Notice of Agenda, and again I agree with Stevecro that, as for General Meetings, an item titled “general business” is a great opportunity for an informal chat, but that’s all!

By the way, back to Felix‘s original post, I don’t think that the By-Law quoted there is applicable to the installation of an air-conditioner, but it rather relates to items located inside a Lot that are visible from outside, such as non-uniform window coverings and laundry items.

In the absence of a Special By-Law at Felix‘s Plan that provides the mechanism for the installation of air-conditioners, including conditions such as screening of external components, the Owners concerned have, by altering that external facade of the building, breached Sect 65A of the NSW Strata Schemes Management Act (SCMA).

In such circumstances, the Strata Manager (if so delegated) should be advising the offending Owners of their non-compliance with the SCMA, and advising them that there will be an item on the Agenda of the next General Meeting to specially resolve whether their air-conditioner installation may be approved retrospectively with conditions (e.g screening), or whether they’ll be required by the Owners Corporation to at their cost remove it and to return the building to its original state.

There’s a bit more detail about managing the on-going maintenance of the Owners air-conditioner and whether a generic Special By-Law may be advantageous, but maybe that’s for another day.

Yes, I have spoken to my legal eagles and they confirm that there can be no decisions made on general business at EC meetings (although you can have discussions withoiut taking a vote). Don’t know where my brain was before.

Felix – as both Scottie and myself advised, the Owners who have installed the air-conditioner are not in breach of any By-Law and therefore a Notice to Comply cannot be issued!

Again, the learned Scottie and me advised you that those Owners are in breach of Sect 65A of the Act, and in that regard you’re quite right by suggesting that you and like-minded Owners need to quickly sort this out, because in my experience the longer such breaches of the Act are allowed to continue, the more quickly others perpetuate, and the more likely they all are to become “rusted-on” (pardon the pun).

In the absence of a relevant Special By-Law at your Plan, the Executive Committee (E/C) cannot itself grant consent to the air-conditioner installation (which whether by design or by coincidence they didn’t), and as only a special resolution at a General Meeting can grant that consent (or not), the matter needs to listed as an Agenda Item at that forum.

If your next AGM is too far away, then you need to speak with like-minded Owners and if necessary lobby more to the extent that you have at least 25% of those (by unit entitlement) on-side, at which point you can collectively “requisition” the E/C Secretary to convene an Extraordinary General Meeting just to consider and vote upon granting conditional consent to the air-conditioner installation, or otherwise to instruct the offending Owners to remove it and to return the common property to its original state.

If your Owners Corporation (O/C) does grant consent retrospectively with conditions, then as it would presumably want to enure that the Owners and not the O/C are responsible for the maintenance of the entirety of the installation, it would additionally require a Special By-Law to be concurrently voted upon in those same terms (i.e. a special resolution) in order to achieve that.

This is getting a little complex, so maybe come back if / when the General Meeting is about to be convened.

Felix – it’s a grey area that others may wish to comment upon, but in my opinion a non-compliance with S65A of the Strata Schemes Management Act would arise if anything has, without the prior written consent of the O/C, been placed through and / or been permanently attached to a common wall by an Owner; that is irrespective of whether that’s on the inside or outside of that wall.

No matter the condenser unit of the air-con. has been placed on as opposed to being fixed to the balcony floor (Common Property), the electrical cabling, and refrigeration and drainage pipework has been placed through and then attached to common property, and that’s a non-compliance that your O/C should address retrospectively by way of the Special By-Law that I previously suggested, that should cover all components of aircon. installations by Owners.

As I’ve said in the past, my opinion about “wink and nod” arrangements such as your E/C has used is that they’re all good until something hits the proverbial fan, at which stage things almost always go pear-shaped in a hurry!

Any Strata Manager who’s worth half what your O/C’s paying them should be able to assist in properly resolving this issue, so maybe start there.