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We have a long existing bylaw requiring some owners to pay for the parts of common property they obtained decades ago to create a patio, garden or garage. Looking at the accounts I noticed that these owners have not been invoiced for years and even possibly decades.
The strata manager said chasing up the unpaid amounts and even the current year amount needs to be voted at an EGM before he will invoice. Is this right? What can I do to get these owners invoiced? No one else seems concerned and Im being made to feel like I’m rocking the boat.
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Does the by-law require an annual payment like rent or just covering the owners corporation’s costs? We have some areas of common property given to certain owners’ exclusive use and the conditions include that they must pay the owners corporation’s maintenance costs associated with those areas. If no maintenance has been needed or done, there is nothing to pay.
Depending on what your by-law says, a vote might not be strictly necessary from a black letter law perspective but it might be necessary politically. If the by-law requires a payment but has been ignored for many years, you might need the situation to be clearly explained to owners and have resuming payments endorsed by a strong majority. Then you would be on a firmer footing if you go ahead against the wishes of those being billed.
Stratus
the bylaws can be obtained from LPI attached to the certificate of title of the property. There is a fee.
Otherwise the strata manager or secretary are required to have a copy of the bylaws which they can give you.
And if you do not do anything then the problem is not going to go away. Just mention to the committee thst you will be starting action under section 232 of the act. If thst doesn’t peak their interest then apply to NCAT. There again is a small fee and lawyers are not required in thst court.
If you say thst the payments are in the bylaws then it’s likely you will win without much effort.Have the committee members who voted against this declared their conflict of interest? If not they may have committed an offence under Section 18 of Schedule 2 of the strata Act (below) and be liable for a maximum fine of $1100 each.
If they have declared their conflict of interest, that should hae been recorded in a special book and they should not have voted
If the committee members choose not to remedy this, then you can pursue them under section 18 or, if you just want to recoup the unpaid money for the strata scheme, you can apply to Fair Trading for mediation leading to a section 232 application for orders against the strata committee or owners corporation to pursue the debt.
On the question of declaring a conflict of interest, the conflicted member shouldn’t be present or vote when the matter is discussed, unless the committee agrees to allow it.
Also, they should not be present or vote on whether or not the committee is going to allow them to be there for the vote on the issue.
You probably will be portrayed as a stirrer if you pursue this. But these people should be reminded that gaining material advantage by not paying money you have agreed to pay is called fraud in any other walk of life, and there is no reason why strata should be different.
In your shoes, I would characterise this as an oversight on their part (even though they may never have intended to pay the money) and, as such, would propose that the owners corp not pursue them under Section 18 and accept settlement of the debts with no historic interest charged.
Otherwise I would be on to Fair Trading immediately and I would tell these backsliders that you will also be seeking costs if it goes to the tribunal.
18 Disclosure of pecuniary interests(1) If—
(a) a member of a strata committee has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting, and
(b) the interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter,
the member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the strata committee.
Maximum penalty—10 penalty units.(2) [Not relevant to this issue]
(3) Particulars of any disclosure made under this clause must be recorded by the strata committee in a book kept for the purpose and that book must be open at all reasonable hours to inspection by any person on payment of the fee determined by the strata committee.
(4) After a member has disclosed the nature of an interest in any matter, the member must not, unless the strata committee otherwise determines—
(a) be present during any deliberation of the strata committee with respect to the matter, or
(b) take part in any decision of the strata committee with respect to the matter.
(5) For the purposes of the making of a determination by the strata committee under subclause (4), a member who has a direct or indirect pecuniary interest in a matter to which the disclosure relates must not—
(a) be present during any deliberation of the strata committee for the purpose of making the determination, or
(b) take part in the making by the strata committee of the determination.
(6) A contravention of this clause does not invalidate any decision of the strata committee.
(7) Without limiting subclause (1), a person has an indirect pecuniary interest in a matter if a person connected with the person has a direct interest in the matter.
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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