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  • #8719
    Jeff
    Flatchatter

      H All,

      A friend of mine has lived in a set of 12 villas which are self-managed. She has been there for 10 years. The place is run down and the sinking fund is very low. She just found out by accident that even though all lot owners pay the same quarterly levies, some should be paying more because of theiy have a larger unit entitlement. She asked to look at the Certificate of Title to verify the figures but the secretary says he can’t locate it. When she asked about the different levels of unit entitlements he told her that many years ago it was decided at an AGM that they should all pay the same levy to” make it easier” for everyone. She has not cited this notation on the minutes of the AGM.

      Is this allowed? And if not, could my friend ask for a refund of the overpayment in her case? English is her second language and as such has difficulty mounting any argument on a very overbearing and patronising secretary. If the Certificate of Title is missing, could she ask the Owners Corporation to purchase a copy from the Lands Department at no direct cost to her?

      Thank you

      Jeff

    Viewing 9 replies - 1 through 9 (of 9 total)
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    • #17953
      kiwipaul
      Flatchatter

        Changing unit entitlements is a serious business and it cannot be done by the OC alone. Once the OC has voted to change the entitlements they then have to go to an Adjudicator (who would require valuations done on the lots to validate the change) to have their request accepted or rejected and then the change has to be registered with the Gov dept.

        The OC and Strata manager should hold a Strata Roll showing everything that is relevant to the complex (unit entitlements, plans, lot entitlements, etc). Their might be a charge for examining this and so an alternative would be to obtain a copy from the Gov dept which would be a guaranteed copy of the details registered with the state. In QLD it cost about $25 to obtain a copy.

        #17971
        Jeff
        Flatchatter
        Chat-starter

          Thank you Kiwipaul for your quick and concise answer.

          Do you know whether she would have a legitimate claim for being “overcharged” in her levies over the last 12 years? If os would Fair Trading be her first step?

          #17975
          Jimmy-T
          Keymaster

            This owner need to take an action at the CTTT under section 149 (below) to get an order to refund the excess payments she has made, using the Unit Entitlements that were registered with the strata plan as her guide, and to make future levies compliant with the Act.

            What should happen is that the Owners Corp should refund money to those who have overpaid and charge an excess to those who have underpaid.  The CTTT may place a time limit on how far back you can go with your claim.

            The first step is to apply for mediation at Fair Trading (this form) and if that fails, make an application for an order at the CTTT using this form.

            Realistically, the other owners don’t have a leg to stand on if there is evidence that they have been charging levies calculated by an other means than the unit entitlements.

            This owner will have to provide evidence of what the unit entitlements are (or should be) and what they have paid in levies over the years. 

             

            This is what section 149 of the Act says:

            149Order for variation of contributions levied or manner of payment of contributions

            (1)  An Adjudicator may make either or both of the following orders if the Adjudicator considers that any amount levied or proposed to be levied by way of contributions is inadequate or excessive or that the manner of payment of contributions is unreasonable:

            (a)  an order for payment of contributions of a different amount,

            (b)  an order for payment of contributions in a different manner.

            (2)  If an Adjudicator considers that the consent of an owner referred to in section 77 has been unreasonably refused, the Adjudicator may make an order for payment of a different amount of one or more contributions levied or proposed to be levied by the owners corporation.

            (3)  If a contribution which is the subject of an order under this section has been wholly or partly paid:

            (a)  an order to pay more has effect as if the owners corporation had decided to levy a contribution equal to the difference, and

            (b)  an order to pay less imposes a duty on the owners corporation to refund the difference.

            (4)  An application for an order under this section may be made only by the lessor of a leasehold strata scheme, an owners corporation, an owner or by a mortgagee in possession (whether in person or not).

            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.
            #17979
            Jeff
            Flatchatter
            Chat-starter

              Thank you Jimmy. This information would be very helpful to my friend.

              #17980
              Jimmy-T
              Keymaster

                @Jeff said:
                Thank you Jimmy. This information would be very helpful to my friend.

                One other thing, since your friend has to pay for mediation to start the process, it may be smart for her to demand that the Owners Corp produces the Strata Roll to show the unit entitlements – saving her the expense of getting a copy.

                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.
                #17985
                kiwipaul
                Flatchatter

                  According to my reading of the law you can skip mediation and go straight to Adjudication IF the Strata Roll (or other legal document) shows unit entiltlements are different from what she has been paying, because a mediator has no jurisdiction in this case.

                  If it becomes clear the officiers of the self managed Strata complex have manipulated the strata fees to reduce their fees and increase the fees others pay it is a clear case of corruption and could involve the police. Suggest you imply this is the action you will take if adjudication goes in your favour.

                  You need to be sure the strata fees you are paying are NOT in line with the Strata fees you should be paying based on unit entitlement.

                  From NSW Strata living

                  What disputes are excluded?
                  The following disputes are excluded from mediation:
                  • appointment of a compulsory strata managing agent
                  • compensation
                  • allocation of unit entitlements
                  • penalty disputes.

                  #17988
                  Jimmy-T
                  Keymaster

                    @kiwipaul said:
                    According to my reading of the law you can skip mediation and go straight to Adjudication IF the Strata Roll (or other legal document) shows unit entiltlements are different from what she has been paying, because a mediator has no jurisdiction in this case.

                    From NSW Strata living

                    What disputes are excluded?
                    • allocation of unit entitlements

                    Yes but … no, but …

                    This isn’t about the allocation of UEs it’s about the amount of levies charged.   We are working on the basis that there was a set of UEs established when the strata plan was registered but that was ignored by subsequent Owners Corps.

                    On the CTTT form, under Section 149, it says 

                    To alter amount of contributions or alter manner of payment of contributions

                    • Describe why the levy should be a different amount and what the amount should be
                    • Provide the date the levy was decided and the last day for payment
                    • Include the estimates and minutes of meetings where the levy was decided
                    • Describe how the levy should be paid (you should provide sufficient detail to enable an understanding of your budgets and levies)
                    • Attach evidence of attempted mediation

                    The last line is also in bold on the form so I guess that means they mean it.
                    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.
                    #17993
                    kiwipaul
                    Flatchatter

                      I hear what you are saying Jimmy and if this was a one off I would agree with you. But this  SCAM as been going on for approx 10 years against a no of lot owners who are generally ignorant of the rules. The current self managed Strata Management have in effect changed the UE to their benefit (I would assume).

                      A conciliator hasn’t the knowledge or powers and cannot negotiate the UE. If the OP goes to conciliation (I doubt a conciliator would touch this with a barge pole) regarding her claims and come to a settlement on just her claim, she could in the future be accused of complicity in the scam.

                      An adjudicator has the power to appoint a professional SM to resolve the issues affecting all the owners and to prevent any of the offenders selling their properties before they have repaid all amounts due (or at least make a note in the Strata Roll that lots x,y & z have strata fees and penalty interest owing of unknown amounts).

                      Also if they have manipulated the system such that they pay lower fees then they would not be allowed to vote at the AGM or other OC meeting until these debts were cleared.

                      I consider these reasons I have put forward more than enough to satisfy an adjudicator that conciliation is not applicable.

                      #17996
                      Jimmy-T
                      Keymaster

                        KP, I’m trying to offer practical advice based on considerable experience with the CTTT.  You seem to be saying it is worth Jeff’s friends risking getting to adjudication only to find that  should have gone for mediation first.  I can only say in the strongest possible terms that I disagree.

                        I have seen too many cases fail at adjudications – which are done on paper without personal representations – because the correct paperwork wasn’t provided.

                        Jeff’s friend will not be there when the adjudicator looks through the pile of papers for evidence of mediation, as the form clearly demands.  So there will be no one there to argue the subtleties of strata law and what the wording of the legislation means.

                        If mediation is not required for this, you would hope that someone for Fair Trading would say so in writing so that can be added to the documents provided.

                        Mediation is not necessarily geared towards compromise. What is more likely is that the law will be explained to both parties and then, hopefully, they will reach an agreement that is mutually acceptable and involves both financial compensation for those who have paid too much, an added impost on those who have paid too little and agreement on the correct procedures to be followed in the future.

                        This is not about my interpretation of the law being better or worse than yours – it’s about presenting a watertight case to the CTTT Adjudicator.  If the legislation and the forms suggest mediation might be required, it would be cavalier of us to suggest that Jeff’s friend doesn’t bother with it.

                        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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