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  • #8581
    sltflatchat
    Flatchatter

      After many warning letters to a tenant for “interfering with the peaceful enjoyment of another occupier”, the EC instructed the Strata Manager to issue a NTC to the tenant. The strata manager says that the EC has to call an EC meeting, put the agenda and the motion (to issue the NTC) on the notice board, pass the motions at the EC and provide the SM with the minutes of the meeting before he can act.  The Duties relating to the “Issuing and serving notices to comply with a by-law” in Schedule1 of the Strata Management Agency Agreement has been marked,  giving “Full Authority Subject to Limitations as Disclosed in Schedule A2”. Schedule A2 includes services relating to “Work associated with by-laws (amendments, additions, deletions, registrations, enforcement and breaches – owners corporation or executive committee instruction”.

       

      I would have thought that the EC instruction to the SM (giving full details of tenant’s name, address, copy of by-law, details of the incidents etc) should be sufficient for the SM to issue the NTC.  However, the SM insisted that the EC has to go through the process mentioned above i.e. preparing the agenda, motions and display on the notice board, providing minutes of EC meeting etc.

       

      Is the advice from the SM correct?

    Viewing 6 replies - 1 through 6 (of 6 total)
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    • #17291
      Jimmy-T
      Keymaster

        I think you are right.  It looks like the strata manager has full delegated powers which means they can go ahead and issue the Notice To Comply.

        Does anyone read this differently?

        Here’s what the law says:

        STRATA SCHEMES MANAGEMENT ACT 1996 – SECT 45

        45 How can an owners corporation enforce the by-laws?

        (1) An owners corporation may serve a notice, in a form approved by the Director-General, on the owner or occupier of a lot requiring the owner or occupier to comply with a specified by-law if the owners corporation is satisfied that the owner or occupier has contravened that by-law.

        (2) A notice cannot be issued under this section unless a resolution approving the issue of the notice, or the issue of notices for the type of contravention concerned, has first been passed by the owners corporation or the executive committee of the owners corporation.

        (3) Subsection (2) does not apply to the issue of a notice under this section by a strata managing agent if that function has been delegated to the strata managing agent in accordance with this Act.

        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.
        #17292
        scotlandx
        Strataguru

          That’s tricky – my first thought was the SM could go ahead, but there is that thing at the end re EC instruction. It looks like the SM has authority to do a range of tasks/functions associated with managing the scheme.

          The strata manager doesn’t have delegated authority to make decisions on behalf of the EC, and it is very important when issuing a notice to comply that you tick all the boxes, or you won’t be able to enforce it at the CTTT. To issue a notice to comply you must have a resolution of the EC (or the OC at a general meeting). What bothers me is that the A2 doesn’t specifically state this is delegated to the strata manager. And the manager doesn’t think he has that power.

          Go ahead and have the meeting. It doesn’t take long to do the agenda etc. The SM can help with that.

          #17295
          Whale
          Flatchatter

            Our Plan uses the proforma Notice to Comply (NTC) that’s provided (as a pdf download) on the NSW Office of Fair Trading’s website.

            We’re self-managed, but the notes appended at the bottom of the proforma NTC may clarify the points being made on other posts concerning the requirement for an Executive Committee Meeting and the ability of a Strata Manager to decide (see note 2 below) to issue the NTC under a delegation forming part of their Agency Agreement with the Owners Corporation.

            The relevant notes are:

            1) The executive committee, or owners corporation if it has decided not to let the executive committee issue this notice, must convene and hold a meeting to decide to issue the Notice and record its decision in the minutes. Alternatively a managing agent that has been delegated the function may decide to issue a Notice.

            2) The secretary or managing agent should keep a copy of this notice, and a record of the date and method of service. A strata managing agent who issues a Notice must make a written record specifying that action and the manner in which it was done and serve a copy of the record on the owners corporation.

            The use of the word “decide” is interesting in terms of a Strata Manager (SM) exercising their delegated function, but to be safe I’d still ensure that the Secretary formally instructs the SM to issue the NTC concurrently with providing the details of the alleged breach incident/s and the resident’s details.   

            #17334
            sltflatchat
            Flatchatter
            Chat-starter

              Thanks Scotlandx and Whale for your comments:

              Scotlandx – Getting a resolution of the Executive Committee (EC) (or the OC at a general meeting) is the norm when the Strata Manager has not been delegated the function of issuing the Notice to Comply. In our agreement, Schedule 2 includes “Work associated with by-laws (amendments, additions, deletions, registrations, enforcement and breaches”. Issuing of Notices to Comply come under “Enforcements”. That should be specific enough.

               Also, the issue is not whether we should hold the meeting – the issue is whether the Strata Manager’s advice is correct.  This is because I am applying Section 45(3) of the Act to show that the delegation has been given to the Strata Manager, hence instructions from the EC (after agreement among themselves via email correspondence) to issue the NTC should be sufficient. However, his interpretation is that he has not been given the delegation, hence the EC has to hold a formal EC meeting and provide the minutes etc before he acts.  

              #17344
              scotlandx
              Strataguru

                The thing is, I don’t think the strata manager has the delegated power, so I agree with your strata manager.  Your delegation refers to “work associated with” and “issuing notices”, it doesn’t refer to the strata manager exercising the function/power of the EC, i.e. the EC making a decision/resolving to issue a notice to comply.  Note 1 of the proforma refers to the EC holding a meeting and deciding to issue the notice and recording that decision in the minutes

                If the strata manager had that power/function you would expect the delegation to be expressed as something along the lines of:

                “Exercising the function of the EC to determine to issue a notice to comply with a by-law”.

                Determining to issue the notice and issuing the notice are two separate things – I think your strata manager has the delegated function in relation to issuing the notice subsequent to a decision of the EC to do that, that is the “work associated”.

                An EC can determine to issue a notice to comply by email, we have had legal advice that that is fine but you would only do that if it were urgent, as you are missing the notice step.

                One query – if a strata manager is exercising the function of the EC either in relation to specific functions or more generally, surely the notice provisions still apply?  In the case of compulsory strata managing agents notice is still required to be given.

                #17347
                Whale
                Flatchatter

                  sltflatchat-  I agree with your interpretation that your Strata Manager’s Sh2 dutiies of “enforcement” would cover issuing a Notice to Comply (NTC), but it’s what may follow the issue of that Notice that I believe is causing him to prevaricate.

                  Let’s assume that the recipient of the NTC wants to discuss the issues with the Strata Manager who issued it and that discussion becomes heated, or if that recipient chooses not to comply. As the “peaceful enjoyment” issue that your original post referred to likely relates to noise, that’s an issue that has to be mediated through the convoluted processes of the Consumer Trader & Tenancy Tribunal (CTTT).

                  Those of us who have experienced the CTTT know how painful that can be, not just in terms of your Strata Manager’s time to attend the mediation sessions ($), but if those don’t produce a settlement, also in terms of the Tribunal where Members’ often make determined and time consuming ($$) efforts to find a reason for not ruling, on anything.

                  I’m not in any way suggesting that your Executive Committee drops the issue, but rather that it knows what the issue of a NTC could lead to, and that there may be other ways to skin the noisy tenant.

                  The first alternative is to advise the Proprietor/Landlord and their Agent in writing that their tenant continues to breach the Plan’s By-Laws and the conditions of his/her Tenancy Agreement despite the issuing of “several warning letters” (copies of which should be attached). That letter should also point out to the recipients that under a NSW Local Court Ruling (6393/11), a Landlord (and their Agent) is deemed as responsible for the consequences of their tenant’s noise making activities as they would be if they themselves had made it.

                  The consequences of the above were Orders against the Proprietor/Landlord pursuant to S268(4) of the NSW Protection of the Environment Operations Act (1997), and that leads to your E/C’s second alternative whereby it can itself seek to obtain a Noise Abatement Order against the tenant in the Local Court. Sure, your E/C would may need to present evidence and statements, but it would need to do that anyway if it proceeded down the NTC path as opposed to the much more certain and less convoluted one to the Local Court; why not ask them?

                  The third alternative is that when the tenant next creates a disturbance, call the Police because they have the discretionary powers to issue a Noise Abatement Warning, and if it persists a Noise Abatement Direction where an on-the-spot fine generally gets results.

                  The last alternative is to produce a short E/C Meeeting Agenda, hold the Meeting (by e-mail if necessary as Scotty suggests), Minute the Resolutions to issue the NTC and to instruct your Strata Manager to issue that, and provide him/her with a copy.

                  That’s it … probably confused the issue, but these are all the options that I can think of to resolve the issue of a tenant “interfering with the peaceful enjoyment of another occupier”; good luck. 

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