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Wow! Why am i not surprised that the masses in some SP’s do not like someone because they want to go by the strata laws.
The people who think educating people will help fix strata problems refuse to recognize that in some cases people just do not want to know and by having those who do know mix with those who do not want to know; it just creates a huge friction.
To answer you question, it can go on until you need to make a decision but you the OC will then need to make any decisions at a general meeting. If you have an agent with full authority then he/she can make decisions. I would refer you to s16 and 17 of the Act.
16 Owners corporation to appoint executive committee
(4) If there is no executive committee of an owners corporation, the strata scheme must be administered by the owners corporation, but nothing in this subsection prevents a strata managing agent appointed under this Act from exercising any functions conferred on the agent.
17 What happens if executive committee is not appointed?
(1) An Adjudicator may, on application, make an order appointing a person nominated by the applicant (and who has consented to that nomination) to convene a meeting of the owners corporation if no executive committee of the owners corporation exists after the first annual general meeting.
(2) The meeting is to be convened and held within such time as is specified in the order.
(3) A meeting held under this section is, for the purpose of the election of an executive committee, taken to be the first annual general meeting of the owners corporation.
(4) An order made under this section may include such ancillary or consequential provisions as the Adjudicator thinks fit.
(5) If an order made under this section so provides:
(a) the person appointed to convene a meeting of an owners corporation by the order is to preside at the meeting and, while the person so presides, is taken to be the chairperson of the owners corporation, and
(b) notice of that meeting may be given in the manner specified in the order.
(6) An application under this section may be made only by an owner, mortgagee or covenant chargee of a lot in the relevant strata scheme.
@JimmyT said:
I think my method for removing the chairman – a simple motion to declare the office vacant (or declare the office vacant and seek nominations for a new chair) – is possibly more correct and less open to challenge. Once the office is vacant, the Secretary is entitled to take nominations and vote on a replacement which can be done without having to name the replacement in the minutes. Since the first rule of politics is to never ask a question to which you don’t know the answer, the replacement chairman or woman would already have been identified and the votes lined up.I subscribe to the process outlined in Horsley’s Meetings (textbook) or the process outlined by Ilkin (strata lawyer).
The Chair is running the meeting and the Chair puts motions to the meeting so if you vacate the Chair, via a motion, then you have no Chair and therefore nobody is running the meeting, that makes anything that follows open to challenge because do you even have a meeting?
The strata act does allow for the office bearers to be elected in the absence of any office bearers at the first meeting of the new EC (s18) but once you have office bearers common law standards apply because the Act is then silent except for clauses 5 & 8 of Schedule 3.
It is not the role of the Secretary to take nominations and submit motions to the meeting to elect the new Chair if the old Chair has just been deposed by a motion.
Horsley is very clear if one wants to have a motion to vacate the Chair then the motion should include that “Joe Bloggs” assumes the Chair; a very understandable proposition. Such a process makes a smooth transition.
A motion to simply vacate the Chair has issues if you read Horsley’s Meetings so it is not a good option.
Ilkin on the other hand proposes the idea that a motion to appoint another person “removes” the old person if the motion is successful. A bit like the newest proxy is the valid proxy if there are multiple proxy forms from the same owner. The newest resolution of who is Chair determines the Chair – see clause 5 of Sch 3.
I feel either of the above is a far more solid than what JT suggests and i would ask why JT feels the Secretary is entitled to take over the meeting in the absence of a Chair given the Chair precised if present or another EC member is made Chair in the absence of the elected Chair see clause 8 of Sch 3.This clause (cl 8) is about what to do if the Chair does not show up; it is not about what to do if there is no Chairperson
It seems pretty clear the meeting needs a Chair and both the Horsley or Ilkin method never leave the meeting without a Chair, they both just instantaneously change the Chair.
I would never recommend to an SP to just vacate the Chair position and have no Chair given the two options i outline but i will say that if you take JTs advice then i seriously doubt CTTT would make an order if someone kicked up a stink – but a real court who are strict on process might not be so relaxed.
The vacate and fill motion is somewhat bullet proof if Horsley is any guide; and it is.
Pass a new Chair motion seems to meet the requirement of the Act.
Depose the Chair and proceed without a Chair to get a new Chair .. i have no reference source that claims it is a valid method.
@Whale said:
……………
A standard limitation is that except with the prior approval of Owners at a General Meeting, no payment may be made against any item that would bring the YTD spend for that item (e.g. grounds maintenance) to an amount that would exceed its approved annual budget allocation, plus 10%. Further limitations, or a decision to have none at all, must be resolved one way or the other by Owners at each Annual General Meeting (AGM). You would need to check the Minutes of your Plan’s last AGM to ascertain which if any restrictions on spending apply.…………
Just so Phlebe knows, the 10% limitation is for large strata plans and can be found in Section 80A of the Strata Act.
How strict is the restriction on spending?
We had an owner do a CTTT matter that included the well documented (EC minutes specifying cheque numbers and amounts) spending of ~25k when there was only a 16k budget. That is spending the budget plus another 50+%. The matter got no comment from the “highly trained professional” at CTTT who handled the matter. The application was for a s162 order and involved numerous other issues but none of it mattered; case dismissed.
That the over spending got no mention in the adjudicators reasons makes me wonder how serious the limitation is because 50% overspending did not bother that particular Senior CTTT member.
More relevant to where this topic is currently at;
Your Chairperson.
Find someone on the EC who will take on the Chair role. It can be you if you want.
You could put a motion on the EC meeting agenda that says;
“Mr. Bad Chair” will vacate the Chair and “Mr. or Mrs Good Chair” will assume the Chair. (one motion)
Alternatively a simple motion; That “insert name” is made Chair of the Executive Committee” will do but it is nicer to have the Chair emptied and then filled again rather than just pulling “a Julia Gillard” and knifing the person who is in the way.
Insert real names in the motion where appropriate.
If you want to be more stealth about the matter you can introduce the motion at the EC meeting because it is a “procedural motion” and not a substantive motion which would require owners being given proper notice.
As soon as the meeting opens raise the motion and say goodbye to your bad Chair – if all goes well. The “Bad Chair” does not even need be there.
You can be open about it or use a little cloak and dagger, you can empty and fill the chair or you can just knife them in the back – either way you get the bad Chair out of the Chair.
My recommendation would be to use the empty the Chair, fill the Chair motion as soon as the meeting opens.
@basjan27 said:
A follow-up question:Once the requisition agenda has been sent to the Sectrerary can the motions included in the requsition be changed, or new ones added, by a member of the OC or by the EC?
Can the EC, having received the requisition, then decide to add motions of its own for consideration at the EGM.
Or, must the agenda be presented as is at the EGM?
Thanks
Can the motions be changed?
Yes; the motions can be changed on the day (at the meeting) by a motion to allow the motion to be amended but the motion cannot be amended to the point it becomes what could be considered a new motion.
A motion to amend the motion is put to the meeting and the meeting discusses the proposed amendment and then votes to accept or decline the amendment. If accepted the amended motion is then put to the meeting and voted on, if the proposed amendment fails then the original motion is voted on in its original form.
Can the EC add to the agenda?
The EC*, as a collective, cannot add to the agenda because the EC are not a person BUT any person can add to the agenda (provided they will be eligible to vote at the meeting) as long as the addition is made prior to the EC sending the notices for the meeting.
* In Qld the Act specifically states the EC can submit motions but in NSW the Act is clear who can submit motions and “the EC” does not qualify. If the EC was allowed to submit motions in NSW then non financial owners who are EC members and people not on the strata roll (both fairly common EC members in some SPs) could have an avenue to submit motions and if that is going to be the case then the Act might as well say any old Joe can submit a motion, no restrictions.
@scotlandx said:
There is another way around it which is probably easier. The EC has to have a meeting….. To have an EC meeting they are obliged to give notice of the meeting to all owners and include the proposal in the agenda.….. Note that if they don’t give proper notice of the meeting with an agenda etc., then you could probably challenge the decision on those grounds anyway….
.Every month there is another EC meeting in my SP without a detailed agenda. Meetings which generate EC minutes that have resolutions that are mostly from, if not all from, introduced matter.
I read posts that say the EC is supposed to send a detailed agenda, stick to the agenda etc etc and i think what a load of rubbish because in my SP they do not and CTTT did nothing when the matter went to them. I sent the CTTT fools 3 years of EC minutes that showed the agendas are not detailed, not followed and that the EC has little regard for meeting procedures; waste of time.
Here is an example from my next EC meeting agenda;
“discuss quote”
What on earth does that mean, what quote, for what work or purchase??
This is typical of what CTTT have “endorsed” for being a detailed agenda item, two vague words.
The EC are not obliged to give anything because if they were obliged to then my EC would have been made to meet the obligation.
I am not questioning the validity of what scotlandx says because it is correct but you might well find that next to nobody cares if the EC do not follow process because theory and reality are sometimes worlds apart when CTTT are involved.
@Urban Spaceman said:
Well said Jimmy, great advice for nsim1980.Our own Lower North Shore local council is currently changing their astoundingly ludicrous rule of ‘building and power tool noise OK from 7am until 8pm every day’ in response to numerous complaints and suggestions from local residents, a fair proportion of which are flat dwellers.
In the strata where I live, we have the new by-law ‘no building or power tool noise before 8am or after 5pm weekdays, before 8am and after 1pm Saturdays and not at all on Sundays and Public Holidays’. Also we have a very tall, broad shouldered Secretary and highly athletic Chairman who turn up together on the doorstep of any miscreants, often in their sports gear and sweating from some workout or other.
This is where the ludicrious rule comes from;
Protection of the Environment Operations (Noise Control) Regulation 2008
Current version for 6 January 2012 to date (accessed 1 March 2012 at 15:52)
Subdivision 1 Time limits on the use of certain articles
50 Power tools and equipment
(1) A person must not cause or permit a power tool or swimming pool pump to be used on residential premises in such a manner that it emits noise that can be heard within a habitable room in any other residential premises (regardless of whether any door or window to that room is open):
(a) before 8 am or after 8 pm on any Sunday or public holiday, or
(b) before 7 am or after 8 pm on any other day.
Maximum penalty: 100 penalty units in the case of a corporation, 50 penalty units in the case of an individual.
The above is a NSW Government State Regulation so it would be interesting to see how anyone went in Court if they said “but my Council says” or “my by-law says”.
My local Council has some rules that are contrary to State Laws/Regulations and they quickly shut up about them if someone starts pointing out the State laws/regs but most people live with the belief that if Council say so then that is the way it is. I think it is very poor that Councils sometimes play on the ignorance of their rate payers.
There are some people in my SP who would like to borrow your Secretary and Chair if they are “guns” for hire.
If nobody wants to be transparent then Section 108 of the Strata Act allows owners to search the records of the OC. This includes the current financial records that the OC is required to keep. To get an idea of what financial records can be accessed you can start by looking at section 103 of the Strata Act and then refer to clauses 5,6 and 7 of the Strata Regulation 2010. These indicate that you should be able to look at everything the EC/SM has spent money on if they are keeping proper records.
It will take a bit of time but that should reveal where the money went.
My SP ran our admin budget into deficit, i doubt the Treasurer even knew until the audit report came out. Money was then transferred from the sinking fund to the admin fund to cover the hole. The money from the sinking fund was never returned via the required special levy. What can ya do?
Section 71 of the Strata Act says
(2) However, an owners corporation may disburse money by transfer from its sinking fund to its administrative fund or by meeting from its sinking fund expenditure that should have been met from its administrative fund if the owners corporation complies with subsection (3).
(3) The owners corporation must, not later than 3 months after the disbursement, make a determination under section 76 (1) of an amount sufficient to recoup the amount of the disbursement.
So if they (the EC/SM) are still spending on admin costs and the admin fund is empty then they are spending sinking fund money and they have, to put simply, 3 months to put it back. If they do not put it back (probable EGM and special levy) then you can play “the chocolate wheel” and see if CTTT cares or not.
You are not in a good situation when the EC, and or manager, are not being transparent and there are financial issues such as deficits that people are hiding.
Good luck with it.
The OC could always pass a by-law to protect the EC.
This is the worst by-law my SP has.
CLAUSE 22 IndemnitiesTHAT every member for the time being of the Executive Committee of the owners corporation shall be indemnified by the owners corporation out of its funds and assets against personal liability for the acts, receipts, neglects or defaults of any other member of the Executive Committee or of any managing agent or for any loss or liability occasioned to the owners corporation by any error of judgement or oversight on his part or for any loss, damage or misfortune whatever which shall happen during the course of the execution of the duties of his office or in relation thereto AND shall be further indemnified in similar manner against any liability incurred by him in defending any proceedings, whether criminal or civil, in respect of any such act, receipt, neglect, default, error or oversight to the extent that Effective office bearers indemnity insurance covers members of the executive committee of SP*****.
I have tried to have this by-law removed, it failed unanimously because i am the one submitting the motion to delete the by-law and the owners do not realize how their funds and assets are backing the EC; that is if the by-law stood up if required. This OC is happy to vote down any motion to get a WHS report – that is due diligence where i come from.
The owners in my SP are constantly exposed to potential liabilities that they need not be exposed to — but they also live in a world where ignorance is bliss and live with the belief that it won’t happen to them.
We do from time to time have Office Bearers insurance as the Secretary just throws it in with a motion for the compulsory insurances at the AGM and the poor naive owners just pass the motion not realizing Office Bearers insurance should be its own motion.
If the Office Bearers insurance policy fails then I can assure you that the members of my EC would say the by-law applies and want to start using OC funds and assets to cover themselves.
@JimmyT said:
It’s legal – just – but is it right? I don’t think so……In fact the minutes of the EC meetings (not general meetings) have to be sent out within 14 days by law.
If he refuses, sack him. The tail must not wag the dog.
It hardly matters but is it 14 days or is it 7 days? I thought it was 7.
I can find where it says 7 days so i am wondering if it is 14 days then where do i find that. I can find where it says they need to remain on display for 14 days so perhaps it is 7 days to send the EC minutes and 14 is just a typo caused by the the display period requirement.
It doesn’t really matter because the late mailing of EC minutes is the type of non compliance that the establishment (CTTT) don’t feel is worthy of their attention – if owners have a problem with it then it comes under what CTTT call “micro management” and the OC can deal with that internally as far as CTTT is concerned, i.e. if an owner does not like late EC minutes then they should try to have the EC removed.
Schedule 3, clause 16, of the Strata Act is another one of those parts of the legislation that an EC can openly ignore. Seven days, fourteen days, a month … it won’t be until numerous owners do not get (or have displayed), repeatedly over several months, the EC minutes; then somebody might make an order.
The time to send/display minutes is one of those parts of the legislation that does not really matter unless a failure to meet the requirement becomes something of major significance.
16 Display of minutes
(1) Within 7 days after a meeting of the executive committee of a large strata scheme, the executive committee must:
(a) give each owner and executive committee member a copy of the minutes of the meeting, and
(b) if the owners corporation is required by the by-laws to maintain a notice board, cause a copy of the minutes of the meeting to be displayed on the notice board.
(2) Within 7 days after the executive committee of a large strata scheme passes a resolution in accordance with this Schedule, the executive committee must:
(a) give each owner and executive committee member a copy of the minute of the resolution, and
(b) if the owners corporation is required by the by-laws to maintain a notice board, cause a copy of the minute of the resolution to be displayed on the notice board.
(3) Within 7 days after a meeting of the executive committee of a strata scheme that is not a large strata scheme, the executive committee must:
(a) cause a copy of the minutes of the meeting to be displayed on the notice board, or
(b) if the owners corporation is not required by the by-laws to maintain a notice board, give each owner and executive committee member a copy of the minutes of the meeting.
(4) Within 7 days after the executive committee of a strata scheme that is not a large strata scheme passes a resolution in accordance with this Schedule, the executive committee must:
(a) cause a copy of the minute of the resolution to be displayed on the notice board, or
(b) if the owners corporation is not required by the by-laws to maintain a notice board, give each owner and executive committee member a copy of the minute of the resolution.
(5) A copy of a minute or minutes required to be displayed on a notice board under this clause must be kept displayed on the notice board for a period of not less than 14 days.
@struggler said:
I do believe that Mr & Mrs Average can run a strata complex. They just have to be pointed in the right direction.
Decisions have to be looked at not in a case by case situation, but in regards to the whole complex. You have to consider that my agreeing to one request, you are agreeing to everyone.
Really an EC needs the guidance of a decent SM and access to a strata lawyer for the more legal aspects. They also just need to use some common sense.
So they need, pointing in the right direction, to have a strata manager, common sense and to have access to a lawyer … exactly my point. The people in question, Mr. and Mrs. Average, do not, on their own, honestly have the ability to run an SP yet the Act has always envisaged that the owners (the owners being the Average’s) run, on their own, their respective SPs.
I’m not speaking universally, i.e.. i am not saying it is not possible, i am saying that in general it seems they cannot; but i would say my comment applies universally to large SPs, i.e. the Averages cannot run a large SP properly.
My point was that the fundamental premise that the Averages (i.e. ordinary lot owners) can run an SP, on their own, is no longer valid; would you agree the fundamental premise is flawed given you submit they need to have a good SM, common sense and access to a lawyer?
“The legislation has always envisaged that generally, strata schemes would be managed by ordinary lot owners for their own benefit….”
J Bordon: Nulama Village P/L v Owners Strata Plan 61788 (Strata & Community Schemes) [2006] NSWCTTT 550 (25 September 2006)Mr Bordon is not saying … The legislation, which originated in 1961, has always envisaged that generally, strata schemes would be managed by ordinary lot owners, who have common sense, with the assistance of a good strata manager and access to a lawyer, for their own benefit….
Big difference and the point is should the legislation reflect the difference between 1961 and 2012. I think it should.
There is no official guidelines but that does not prohibit the OC from including in the management agreement some sort of minimum requirement for reporting.
The EC should probably not expect a detailed income and expenditure report because that takes time for the SM to prepare and that will cost the OC in management fees but if you feel there is a need for it then pass a resolution at an EC meeting to ask for it. Keep in mind the SM is the employee of the OC so do not be afraid to set your employee a task that is within his capability.
Best bet is to ask for a more detailed report but ask about the extra cost before making any commitment to requesting it and make sure the OC is aware the EC is pursuing the matter as it will come at a cost and the OC may decide they do not want the EC adding such a cost, i.e. put it on an EC meeting agenda, be transparent about it, and the OC can veto it if they do not want the EC pursuing the matter.