- This topic has 15 replies, 6 voices, and was last updated 11 years, 7 months ago by .
-
Topic
-
I live in a block of 21 units, where one person owns about 70% of the entitlements and has permanent proxies for a couple of other units. I am the only owner/occupier in the block. There is one on-title car space for each unit, and seven common property “visitor” spaces, one of which doubles as a car wash.
This owner has decided that his tenants should be able to use the visitor spaces, as many tenants have two cars and on street parking in the vicinity is very limited, esp at night. As a result, there are rarely any spaces available for bona fide visitors, and tenants tie up the car wash for days at a time (one was there for 3 months while he went overseas).
At the last AGM I suggested that these vehicles should be “registered” with the OC, at least for security purposes if there is a need to contact the owners in an emergency. This would be a form of compliance with By-Law 2. But this owner wouldn’t have a bar of the idea. In fact he is now suggesting the OC should rip out the on-title storage lockers (at least the ones he owns, but never maintains, and have just become dumping grounds for tenants moving out) located in one corner of the car park level to provide even more parking.
The block is self managed (guess by who), there is no SM (he sacked the original SM a few years ago), and general compliance with the Act is non existent. The accounts are in a mess (refuses requests to have them audited), there are no EC meetings, records of meetings are vague, even minutes have been produced of an AGM that never took place. Everything seems to revolve around his convenience.
As I obviously can’t get any OC support, I am open to suggestions as to what to do. One of the owners, who is on my side, is a lawyer with Strata experience, and even he has said that there is little I can do without going to a lot of expense.
-
Replies
-
I’m assuming the owner who owns 70% of the lots is NOT the developer because if so different rules apply (and these are even more restrictive).
When the development was approved by the local council they would have specified a certain no of Visitor Parking Bays before granting approval of the development. Do any of your plans show the Visitor Parking Bays labelled as such.
No one can change the use of these Visitor Parking Bays without the written approval of the local council. If you took this to adjudication I believe you would win.
These parking bays can only be used by genuine visitors and not by residents or for storage of other items.
Even if everyone voted to allow residents to use the Visitor Bays any new tenant or owner who objected would be able to have the decision overturned because changing the use of the visitor parking bays is NOT within the power of the OC.
You just need to make sure the visitor parking bays are denoted on the plans of the development.
A bylaw granting residents use of the visitor bay would be meaningless as it conflicts with a higher law, that of the council which is the relevant law.
This is a clear case of mismanagement of the strata scheme and would be absolutely ripe for a CTTT statutory appointment of a strata manager.
First, you need to find a strata manager who will take on the jkobe and they will guide you through the process of taking your case to the CTTT.
If they agree, the strata manager then takes over from the Executive Committee and the Owners Corporation, for at least as long as it takes to get everything back in order.
I reckon your majority owner may be deliberately running the building down so as to reduce the price he will pay when you and other owners get sick of the place and sell out.
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.
@Boronia said:.
I would image that removing the storage lockers (steel framework with chain wire “walls”) to provide parking would also require a Council DA?I doubt it, this could be within the power of the OC to remove. The thing about Visitor parking is that it is a statutory requirement for the development and I very much doubt that applies to storage lockers.
Most items of common property can be changed providing the required vote is passed and as this owner holds 70% of the entitlements he is in a domineering position.
Agree with what Jimmy says and if you did get a managing agent in it would cost a lot more than a normal manager and your friend would be up for 70% of these costs.
Boronia – As the storage lockers are on title, the Owners Corporations “interest” would be restricted to the points where they attach to / adjoin the Common Property (floor) and perhaps what is stored within them.
Individual owners, including the one with the majority, could of course remove their own lockers at their discretion provided those points of attachment to the Common Property were not damaged in the process. Conversely, if you and other owners want to retain your individual storage lockers, then don’t permit them to be removed.
A couple of other posts have recommended that you canvas some Strata Management Companies with a view to then initiating actions through the CTTT for the statutory appointment of that Company to get the administration of your Plan under control – that’s good advice so don’t let the grass grow under your feet!
Boronia – Whale is giving you good advice. In your situation your best option is to apply for statutory appointment of a manager, on the grounds that the scheme is not functioning satisfactorily. From what you have said it is certainly not meeting the requirements of the Act so you won’t have a problem.
In relation to the owner having 70% of the entitlements and a number of proxies – the order you would need to seek is one where the strata manager takes over the power to make decisions that are usually made by the OC, i.e. those decisions usually voted on by the owners. That is a very harsh measure but in your case, the order would be pointless without it, because otherwise the owner could continue to do what he wants.
I suggest you not be distracted by the fine details of the storage cages issue at present.
I think you need to talk to a specialist strata lawyer as this guy is giving you flawed advice.
The fees quoted seem highly inflated for a process that basically requires you to fill in a form (application fee $78) and send the CTTT proof that the scheme is not being run according to the Act accompanied by a letter from a strata manager who is prepared to take on the gig.
When whoever loses the case appeals – as they will – you then go to a full tribunal.
Also, because the CTTT has been set up as a ‘low-cost’ dispute resolution body, they won’t award costs, so your lawyer friend is wrong on that count too.
This process is a lot easier and cheaper than you might think – but that doesn’t mean you don’t have to make an effort and spend a little cash. You will find the form HERE – go to page 5 and look at section 162.
This is one of the areas for adjudication that doesn’t require mediation at Fair Trading before you can proceed. Also you can apply to have any or all of the functions of the Owners Corporation or Executive Committee delegated to the strata manager.
In your case I would suggest that you ask for a limit on the time that that strata manager is appointed – two years or until the Owners Corporation is capable of running its own affairs properly, for instance. You could also apply to limit the strata manager’s duties to, for instance, repairs maintenance and management of common property.
Either way it sounds like you would have a strong case for a statutory appointment. You could do a lot worse than contact our sponsors StrataChoice (click on the ad) and ask their advice about compulsory appointment.
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.
That advice is way off base, the lawyer/accountant seems to be assuming that it is a matter for a court (e.g. the Supreme Court), when it is a matter for the CTTT at first (and second) instance. As Jimmy says, the Tribunal is a low cost venue in relative terms. The kind of mediation that is required in a court process is completely different to that in the CTTT, and as Jimmy also says you don’t need that for an application to appoint a statutory manager.
In relation to who bears the costs, it is the party making the application, so if you make the application you pay.
It is very rare for costs to be awarded against a party by the CTTT.
Seems to me this accountant / lawyer you are talking to is in league with your problem owner and is trying to undermine you. Total cost should be in the hundreds NOT thousands.
Here are some of the details that your SM MUST hold:
Financial records and statements
The owners corporation must keep accounting records and financial statements for at least 5 years [s. 103].
These include:
• receipts consecutively numbered
• a passbook, a bank deposit book, or a statement of deposits and withdrawals in order of date, that are bound or kept in a loose-leaf folder
• a cash book
• a levy register.
The owners corporation must prepare financial statements:
• for the period beginning on the date the strata plan was registered and ending no earlier than 2 months before the first AGM
• for each period beginning on the date the last statement was prepared and ending no earlier than 2 months before the next AGM [s. 106 (1)].
And if you go to CTTT they will ask for these which he will not be able to produce thus showing he is incompetent and make the decision just a formality. Get hold of the document Strata living it’s online and make sure you prepare a list of ALL his failures.
What strata fees do you pay because they cannot issue strata fees without a budget for the year with estimates of expenditure.
KP – there is no strata manager. This appears to be a self-managed block.
However, most of these records should be kept so you are right in so far as their absence is proof of mismanagement.
Is the lawyer/accountant in cahoots with the majority owner? Maybe, like so many people in strata, he simply has no idea what’s going on.
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.
@JimmyT said:… You could do a lot worse than contact our sponsors StrataChoice (click on the ad) and ask their advice about compulsory appointment.
We (OC) chose StrataChoice on a recommendation from a member’s friend, who lived in a building managed by them, for our compulsory appointment. That ended a couple of years ago, and we continue to retain them as they are excellent.
- You must be logged in to reply to this topic.