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Hi All,
Im currently in the midst of a wrangle with my managing agent regarding the processes and practices of enforcing by-laws. Until recently I was living in a strata plan with a relaxed attitude towards by law enforcement.
I was recently issued with a notice regarding my breaching by law 10, drying of laundry on my balcony. A breach I have never denied, I and other units have been drying laundry this way for at least the 5 yrs I have lived here, I do so after having had laundry stolen from the common lines. This by law is being breached by at least 6 other units.
The 1st notice threatening action with the CTTT took 10 days to get to me. On day 10 another notice was issued which took 5 days to get to me. 2 days before I received the second notice I received a “courtesy” call from the agent regarding the 1st notice. No mention was made that a second notice had been issued. During the phone call I was advised that “several” complaints had been received and that only 1 other unit had received a complaint. When I advised that at least 6 other units were also in breach the agent advised me to tell her which ones and she would issue notices to them also (not my point).
When I asked for the details of the EC meeting to decide if the complaint was genuine and if they had agreed to the issuing of the notice the agent advised that they did have to meet and that they were emailed the complaint and agreed to the issuing of the notice (the secretary of our 3 person EC advises me he received no such email and has no knowledge of the notice, I have had no responses from the other 2).
I have responded in writing requesting all correspondence relating to the matter as I understand as an owner I am entitled to see this unless there is a very good reason why I should not. The response I finally received today from the agent is timid and woefully inadequate, not addressing any of my requests, apologising for offending me (not the point, and never suggested by me) and advising me that it is her role to issue notices when complaints are received, and detailing how many she sends out each week (why?).
In a nutshell, my issue with this ridiculous and unnecessary situation is that:
- I do not believe the agent has followed the correct process (I have our contract and we have not delegated this duty to her, the EC must give approval before notices are issued)
- that this is a discriminatory, personal complaint from a resident who has a gripe with me alone (which I dealt with politely and in person)
- that the correspondence I am seeking may not to exist
- that the agent could have advised the inexperienced EC that they had other ways to deal with the complaint – no-one complained directly to me and neither the EC nor the agent gave me any warning that a complaint had been received.
I am currently complying with the by law (unlike everybody else) and am seeking some clarity on this, in particular my right to see the correspondence on the matter – I saw mention of this in another forum but cant find it in the legislation. I plan on responding to todays letter, seeking the answers to my questions in my first letter. If anyone can point me in the right direction for my next move it would be greatly appreciated.
Thanks in advance,
skeekymoo
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Replies
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A “notice to comply” is the latest weapon for owners corporations to enforce by-laws. However before issuing a notice, an owners corporation will need to follow certain steps before a penalty may be imposed.
If the owners corporation does not follow certain steps their application to impose a penalty on the offender may be dismissed by the Tribunal or a costs order may be made against the owners corporation, if the Tribunal believes the owners corporation's application is frivolous, vexatious, misconceived or lacks in substance.
The steps to be followed prior to serving a notice include –
1. There must be a complaint in writing with particulars such as the date, time and nature of the by-law breach and witnesses.
2. When the complaint is received, the owners corporation or strata manager may want to speak to the offender and negotiate a solution.
3. The strata manager may issue a notice on behalf of the owners corporation, if the strata manager has been delegated this power under s45(3) of the Strata Schemes Management Act (SSMA). This function must be delegated to the strata manager by resolution at a general meeting.
4. If the function of issuing notices has not been formally delegated to the strata manager, then the person lodging the complaint must put forward a written motion in regards to the by-law breach and the owners corporation or executive committee will need to pass an ordinary resolution in order to authorise the issue and service of the notice to the offender.
5. The strata manager or secretary should then draft the notice and serve the notice personally to the offender.
Before issuing a compliance notice, an owners corporation will need to be satisfied or convinced that there has been a contravention of a specified by-law. The potential for mischief is readily apparent. Section 45 of the SSMA was designed to avoid executive committee members issuing notices on frolics of their own and provides that notices issued by an owners corporation need to be approved at a meeting.
Owners corporation should have a formal by-law enforcement guideline to avoid any potential mischief.
Teys Lawyers have designed a simple and easy to understand by-law enforcement guideline to ensure that the by-law enforcement process is followed and applied correctly by owners corporations. If you would like further details, then please contact us.
Kind regards,
Simone Balsara
Lawyer
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TEYS Lawyers
The Strata Law Experts
02 9562 6500
Skeekymoo
I think we're getting perilously close to you asking Simone for free legal advice on your specific case (rather than something of general interest to all Forum readers). Simone is free to give you as much help as she wants – that's her call – but I think the time may have come to “drop a dime” as they say in the movies and talk to her directly.
Regards
JimmyT
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.
Jimmy, my apologies.
It seems my frustration with this agent is causing me to cross the line, and perhaps my choice of language was misleading. I had seen reference in another forum in regards to an owners right to view OC correspondence but havent been able to find where this is mandated. I thought someone might be able to point me in the right direction. To date I still cannot get any information regarding the complaint against me and would appreciate being pointed to where to find any info for me to backup my argument with the MA.
In regards to the legal status of the letters I have been receiving, I thought other readers may have been subject to these too and that this genuinely might be of interest to more that just myself. Im not requesting specific legal detail, just whether or not there is any requirement to comply with the letters.
Skeekymoo
No apologies requires, Skeekymoo. It's hard to know where the line is so it's even harder to know if it's been crossed.
For the legal status of correspondence, I refer to our friend Murray Cameron of StratamanageIT who told me that in devising his online strata management system he received advice that there is no such thing as “private” correspondence within an Owners Corporation – ie, anything sent to or by a member of the OC and related to the OC can be viewed by any member of the OC. I'm sure Murray or one of our legal members will put me right on that if I got that wrong. However, enforcing that may not be as easy as it should be and may require action at Fair Trading and the CTTT if the EC or your strata manager are reluctant to let you see them.
On the question of the legality of warning letters, I don't think there is any legal requirement for warning letters to be sent before a Notice To Comply is issued since it is, in effect, a warning letter itself. And Notices To Comply have fairly strict rules surrounding them. Again, someone should correct me if I'm wrong, but warning letters then have no legal status but they could be used as evidence of an ongoing dispute if the matter went to an adjudication at the CTTT. Many buildings use warning letters as a way of drawing a complaint to a resident's attention in the hope of resolving the issue without having to resort to a Notice To Comply. Naturally, human nature being what it is, some EC members will also use them to harrass people they don't like.
If there is a problem or disagreement and it's not being properly handled, mediation can offer a way out for all concerned before everybody starts getting all Perry Mason on each other.
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.
Thanks Jimmy.
I really do appreciate this forum, I only discovered it recently, it has provided much invaluable information. I love that so many people are willing to offer their insights for gratis
Right on, comrades!If anyone else can provide info as to where I can find legislation or the like to support my claim to a right to see this correspondence it would be greatly appreciated.
Thanks again all,
Skeekymoo
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