- This topic has 6 replies, 3 voices, and was last updated 8 years, 7 months ago by .
-
Topic
-
I think this is a real issue for law abiding owners who discover at an AGM ( nsw) that habitual long term breach of by laws owners have in fact canvessed to get back onto a position of power making it impossible for owners wanting to contribute and reinstate a level playing field.
as i understand the new strata laws will restrict the stacking of proxies? How can these recaltricants face some kind of penalty? It seems to me that the law has bypassed this section,and should require some accountabilty before accepting a EC position.
one strata scheme has a ” code of conduct” stating breaches , and agreeing to uphold the law etc etc …. However none of the EC sign them!
Perhaps someone can clarify and advise if some these power hungry, corrput owners will be held accountable with the new laws in November
thank you
-
Replies
-
As we often point out on this website, there are no StrataKops patrolling our high-rises, waiting to pounce on anyone who infringes the law or by-laws.
In fact, there are very few strata laws that carry penalties for specific breaches and even then they are routinely ignored. In terms of owners, you can be fined for not registering a new tenant (Maximum $550) or for not giving your tenants a copy of the by-laws ( max $110). Hardly anyone obeys these rules but even if you could prove it you would have to take the owner to NCAT to have the fines imposed.
At the end of the day, whether there are specific penalties or not, you either have to persuade enough other owners to get rid of your committee or you have to get NCAT to either order the committee to act properly or have them replaced by a strata manager (and that’s a whole other can of worms).
The easiest way to get rid of a bad committee is to get your fellow owners onside by persuading them that your committee is costing them money, either through excessive or unnecessary expenditure, or through allowing the value of the property to be eroded through neglect.
Challenging them on a point of principle simply isn’t going to fly for the simple reason that nobody cares.
In fact, the hardest thing to do is to change the committee by being a pain in the backside over technical breaches that no one else cares about. As soon as you set off down that road, the committee will point at you and say “look, this owner is just being a pain in the backside … and here’s the proof.”
Let’s for example take an AGM where someone who should have voted is wrongly not allowed to vote (because they are against the powers that be). You can apply to have the vote overturned but only if that blocked vote would have made a difference to the outcome and if you challenge it withing 28 days.
Just as examples, have a look at sections 153 and 154 (below) – there are so many avenues there, and in other aspects of the Act, that allow adjudicators to refuse to take action, one of them being that they don’t consider anyone was adversely affected.
This puts the onus back on you to effect the change within the Owners Corporation or, as they say, suck it up. If you take the former choice, my advice would be to not make it personal, be utterly sure of your ground and make sure you have the numbers before you do anything drastic.
One weapon is communication – a little website or newsletter that provides information, asks questions and, importantly, provides answers can go a long way to effecting change.
153 Order invalidating resolution of owners corporation
(1) An Adjudicator may make an order invalidating any resolution of, or election held by, the persons present at a meeting of an owners corporation if the Adjudicator considers that the provisions of this Act have not been complied with in relation to the meeting.
(2) An Adjudicator may refuse to make an order under this section but only if the Adjudicator considers:
(a) that the failure to comply with the provisions of this Act did not adversely affect any person, and
(b) that compliance with the provisions of this Act would not have resulted in a failure to pass the resolution or have affected the result of the election.
(3) An application for an order under this section may be made only by an owner or first mortgagee of a lot.
154 Order where voting rights denied or due notice of item of business not given
(1) An Adjudicator may order that a resolution passed at a general meeting of an owners corporation be treated as a nullity on and from the date of the order if satisfied that the resolution would not have been passed but for the fact that the applicant for the order:
(a) was improperly denied a vote on the motion for the resolution, or
(b) was not given due notice of the item of business in relation to which the resolution was passed.
(2) An application for an order under this section may not be made after 28 days after the date of the meeting at which the resolution was passed.
(3) If an order under this section is made in relation to a resolution making a by-law or amending or repealing another by-law and the order has been recorded as provided by section 209, the by-laws have force and effect on and from the date the order is so recorded to the same extent as they would have had if the resolution had not been passed.
(4) Subsection (3) is subject to the by-laws having been or being amended or repealed in accordance with this Act and to any relevant order made by a superior court.
(5) An application for an order under this section may be made only by a person entitled to vote on the motion for the resolution concerned.
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 agree with all of that Jimmy, and in my opinion the following observation by you is the most difficult for caring resident owners to address:
…..the hardest thing to do is to change the committee by being a pain in the backside over technical breaches that no one else cares about
In the area where we live in N/W Sydney, despite reported changes (read: restrictions) to funding for off-the-plan purchases and in particular by overseas buyers, strata buildings are being completed in record time, with the only signage that then prominently appears stating “now leasing”.
So how do the few resident owners in such buildings who do care and who do wish to change the composition of a Strata Committee from hell with a compliant Strata Manager convince a majority of absent/investor owners to support them?
With extreme difficulty if not impossibly in my opinion!
I initially thought that on-line voting may assist, but upon reflection I don’t place too much hope in that initiative of the new Legislation as uninterested owners will likely remain so.
Then I thought that the proposed limits to be imposed on “proxy farming” would curb the ability of the vocal minority at General Meetings to achieve the quorum that currently enables them to benefit from absent owners’ lack of interest in anything other than the return on their investment.
Under the current Strata Schemes Management Act (1996) the lack of that quorum at least provides a caring minority with a further opportunity to enlist support from other owners during the mandated seven (7) day adjournment period before a General Meeting may be reconvened.
Regrettably that window of opportunity has disappeared under the post November 2016 Legislation where, if due in part to the limits on the numbers of proxies that can be held by individuals a quorum is not achieved, then the Chair now has the option to either declare that those then present and entitled to vote both personally and by proxy do comprise a quorum on a motion by motion basis or to adjourn the Meeting for seven (7) days.
No prizes for what the Chair of a committee from hell would do!
Apologies for the negativity, but the way I see the future demographic of strata buildings, and the larger ones in particular, I’m not hopeful for a good (read: easy) life for caring, resident owners who will almost certainly be in the minority among investor/owners and a conga-line of their transient tenants.
@justsaying said:
Thanks, interesting comments and quite depressing! I agree most people dont care….until it impacts on them, then its different! It confirms my opinion and clarifies why so many find strata living is becoming such a hostile environment .You have posted a number of questions on a number of topics so you are clearly unhappy with your current situation. This is not exclusive to apartment living. In fact, it is arguable that it’s harder when you live in a house with a nasty neighbour … then you really are on your own.
I think when the Strata Act was implemented there wasnt enough thought into the way one is compromished unless one accepts that cowboys rule the day.
The fundamentals of the current Act were written 50 years ago. No one could have anticipated the growth of strata to its current levels. However, everything changes on November 30th when the new laws come in.
Most law abiding owners are horrified that common law is thrown out the window in Strata.
Common law can’t be “thrown out of the window”. Strata by-laws can’t subvert superior laws.
Mortified if one dares to speak out and be branded a pain the backside” or worse!! To find oneself having to knock on doors to get support with the knowledge that the EC Secretary has all owners details at their fingertips and usually has already canvessed for votes.
Most people mostly act out of self-interest: it’s human nature and certainly not exclusive to strata. Only you can decide if your issues with your committee are worth the effort of trying to change people’s minds.
To challenge this particular act is largely untested and given the threat of having to pay OC costs if you challenge. NCAT decisions its easy to understand reluctance to persue these hellish and vindictive EC’s.
Paying the owners corp costs is highly unlikely if you have a strong case. Just be sure of your grounds before you act.
There is no lobbying to amend the law to improve this area its all about developers, selling off etc etc.
The laws are changing on November 30, largely as a result of people like OCN, strata managers and lawyers, and, dare I say it, this website and its associated newspaper column demanding change.
there is no legal aid available as in other sections of law.
NCAT is designed to be a low-cost option that doesn’t need legal representation. That’s why both sides have to apply for permission to use lawyers.
For those curious, in NSW lawyers charge you for them to call you @ $88.00 per hour plus the costs of around $5000.00 for a simple case with no certainty of a positive result.
Most strata lawyers will give you an brief, instant assessment, free of charge, of whether they think you have case worth pursuing. But no lawyers in any field guarantee results. That’s why they always “offer opinions” rather than state facts.
Apologises to those wonderful schemes who do act with integrity , respect and transparency you are the diamonds in the rough!
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.
@justsaying said:
I have never had to to apply to NCAT for permission and I dont believe the OC has either.
You need to apply for permission to be represented by a lawyer, or anyone else, for that matter. The following is from the NCAT website:
Representation
NCAT is designed for people to represent themselves at hearing. This provides a low cost, accessible and efficient means of resolving your dispute.
At NCAT parties are encouraged to conduct your own case without representation. Although this may seem daunting, you can expect to have your matter heard and determined fairly and according to law.
Representing yourself also has its benefits by giving you direct control on how your case is presented to NCAT. With the right preparation and organisation, you can be your own best advocate at the hearing.
Requests for representation
A request to be represented must be in writing and contain the following information:
- The file number and parties’ names
- The reason why you are seeking to be represented
- The name and occupation of the proposed representative and whether or not that person is a lawyer/solicitor
- A statement that the proposed representative has your permission to make decisions in your absence that are binding on you.
You can apply to be represented in writing before the matter is heard or you can apply at a hearing. the Tribunal Member will decide on the day if you can be represented.
Your representative may be a lawyer, a real estate agent on behalf of a landlord, an advocate, friend or relative provided you authorise them to act on your behalf and allow them to make a decision at the hearing on your behalf.
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.
- You must be logged in to reply to this topic.