- This topic has 2 replies, 3 voices, and was last updated 3 years, 1 month ago by .
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Does a Building Management Committee have any authority over a Strata Committee other than in connection with shared facilities? Can it over ride the decisions of the Owners Corporation of the residential component of a site which has both residential and commercial stratas? All advice appreciated.
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I think the BC takes precedence only in areas of common interest in a shared building. For instance, the roof and the car park of the building but not the windows, doors and lift lobbies of the residential sector.
I have a feeling this may be spelled out in your strata management statement and, not being a lawyer, I may have got this completely wrong.
Anyone else?
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.
- This reply was modified 3 years, 1 month ago by .
As you’ve probably observed there are parts of a Strata Management Statement “SMS” that purport to tell the member strata schemes what to do, and this is not confined to the management of the shared facilities.
My understanding is that an SMS has the effect of binding all members (strata schemes) as if they had entered into an agreement. The SMS is also not necessarily confined to the management of shared facilities but more broadly governs relations between two or more schemes sharing a building.
This leads to the situation where an owners corporation has technically agreed to matters that would normally have been decided by resolution of its own members.
Some examples….
…each member scheme must enforce its own by-laws (there is no requirement in the SSMA for OC to enforce by-laws unless they so wish or are ordered)
…there must be no inconsistency between the by laws of a member scheme and any by-laws of the BMC
…each member scheme must engage the same strata manager as the strata manager engaged by the BMC
So we have a situation where matters that would normally be resolved upon by owners in general meeting, like the appointment of a different strata manager, become illegal motions that the member scheme’s chairperson should rule as out of order and not put to a vote.
So what happens if a member scheme goes ahead and resolves to appoint the strata manager of its choice ? – I have witnessed several schemes just going ahead and doing this despite the restrictions of their SMS –
They would appear to be breaching the SMS and therefore in a contractual dispute with the other member(s) of the BMC.
In practice it is unlikely that other BMC members will take action or invoke dispute resolution measures, but they could and then the lawyers would get involved and the fundamental question of whether strata scheme owners have been disenfranchised would be put on the table.
After all, owners are being bound by an agreement (SMS) that was entered into before they had had their first AGM and when all the parties to the signing the SMS were in all probability the same person – the original owner / developer entering into an agreement with himself
John Hutchinson
m: 0418 797470e: john.hutchinson@strataanswers.com.au
S T R A T A A N S W E R S PTY LTD practical solutions for strata living
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http://www.strataanswers.com.au
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