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Hi
I have a situation in my building where a very unattractive table and bike have been put by an owner in the front foyer of one of the stairwells. The table is up against a wall and the bike is chained to the steel stairwell. They both have been there for a few months and I have recently mentioned it to our Strata Manager. He has told me that he has been instructed that the items are to stay there until it is raised at the next AGM at the end of August, where he will ask only those present if there is a problem with them being there.
My question is firstly are they allowed to be there, secondly can they be removed and finally is it within his jurisdiction to being ask the question? Does whoever put them there need some kind of approval?
Thanks!
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supersleuth asked……
….are they (i.e. the table and bike) allowed to be there?
answer: NO, as this breaches model by-laws 3 & 9 that state “an owner or occupier of a lot must not obstruct lawful use of common property by any person” (3) and “an owner or occupier of a lot must not deposit or throw on the common property any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using the common property” (9).
….secondly can they be removed?
answer: NO, not until the owner of the items is given the opportunity to do so.
….is it within his (i.e. a strata manager’s) jurisdiction to being ask the question?
answer: OF COURSE, but it sounds like the nominated liaison for the executive committee (possibly the secretary) has instructed the strata manager in the manner that you’ve described; that is to raise the matter at the next AGM
….does whoever put them there need some kind of approval?
answer: YES, and whilst the resident concerned could apply to the owners corporation for consent, would it wish to grant that for a purpose that amounts to this resident’s cost-free use of the common property? NO!
My suggestion is that rather than waiting for the matter to be raised at the AGM, possibly in an informal way, that as the meeting is to be convened shortly you write the following note / motion and send it to the Secretary of your executive committee with a copy to the strata manager:
“I have made the strata manager aware of materials comprising a bike and a table that has been deposited in the foyer to the stairwell I believe by the resident of unit * in contravention of by-laws. I am of the opinion that the depositing of these and similar items will proliferate if action is not taken by the owners corporation to enforce its by-laws, so I submit the following motion for inclusion on the agenda for the general meeting:
THAT the owner of the material placed on the common property at (describe the location), and which at the time of writing comprises a bike and a table causing nuisance and potentially a hazard to occupants, be required by the owners corporation to remove those materials from the common property, and in default that the executive committee or the strata manager if so delegated issues the resident concerned with a Notice (to comply with by-laws 3 & 9) under the provisions of Sect 45 of the NSW Strata Schemes Management Act (1996) and that if necessary that compliance be enforced as prescribed in that Act.“
It sounds like your strata manager isn’t expecting a big roll-up to the general meeting and/or that those who do will follow his lead by perhaps doing nothing about the problem, so between now and the date of the meeting you may wish to approach like-minded owners to support your motion, either at the meeting or by giving you their proxy to vote on their behalf.
As you’re only a few days past what may be an arbitrary deadline, I suggest that you submit your motion anyway so that at the very least it’s on the record.
Proxies need to be submitted to the Secretary before the commencement of the Meeting, but that’s of little consequence as all items upon which decisions can be made at an AGM must be specifically included on the agenda.
“General business” is useful only as a means to enable informal discussions at the conclusion of the Meeting and no decisions involving the activities of the owners corporation in its management of the Scheme can be then made.
Or you could just wait until November 30 when the new strata laws include a regulation allowing Owners Corps to dispose of “abandoned goods”.
What are abandoned goods? Anything left on common property after a period specified in a removal notice has expired. The period must be not less than 48 hours.
The regulation (below) is very specific about the procedure but it allows Owners Corps to remove and even sell goods that have been left on common property without written permission.
Just one note of caution – these are draft regulations which means they may be changed before November 30. Keep and eye on THIS PAGE on the Fair Trading website for any updates.
Also because they are regulations, rather than a clause in the law, they may be changed at some point once everyone sees how the laws are working.
32 Disposal of abandoned goods: section 125 of the Act
(1) This clause applies to goods left on common property (other than motor vehicles and things permitted by the owners corporation to remain on common property).
(2) The owners corporation may dispose of goods left on common property if:
(a) a disposal notice has been placed on or near the goods and the goods have not been removed from the common property within the period specified in the disposal notice, or
(b) they are perishable goods, or
(c) they consist only of rubbish.
(3) A disposal notice must:
(a) not be less than the size of an A4 piece of paper, and
(b) be placed in a position or be in a material so that the contents of the notice are not likely to be detrimentally affected by weather, and
(c) describe the goods and state the date and time the notice was issued, and
(d) state that the goods will be disposed of if they are not removed from the common property before the date and time specified in the notice (being not earlier than 48 hours after the notice was placed on or near the goods), and
(e) specify contact details for a member of the strata committee in relation to the notice.
(4) If the goods are so placed that they block an entrance or exit, the owners corporation may move the goods to another place on the common property before placing a disposal notice on or near the goods, and for that purpose the owners corporation is taken to be the owner of the goods.
(5) The owners corporation may dispose of the goods by selling them or in any other lawful manner and for that purpose is taken to be the owner of the goods.
(6) A purchaser of goods sold by an owners corporation in accordance with this clause acquires a good title to the goods freed and discharged of any interest of any person who would otherwise have an interest in the goods.
(7) The proceeds of a sale of goods under this clause are to be paid to the administrative fund of the owners corporation.
(8) The owners corporation must make a record of goods sold under this clause and keep the record for a period of not less than 12 months after the disposal.
(9) The record must contain the following particulars: (a) a description of the goods, (b) the date of the sale, (c) the name and address of the purchaser, (d) if sold by auction, the address of the principal place of business of the auctioneer.
(10) In this clause: motor vehicle has the same meaning as in the Impounding Act 1993
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.
At this point in time, any “disposal notice” would have no authority unless it was issued as I suggested (in post #2) as a Notice to comply with a relevant by-law, in which case it has to be issued by the owners corporation or its executive committee after the passing of a motion to do so at a properly convened meeting.
So…. NO, the notice that you left is not valid; it’s just a friendly note!
In conclusion, as I alluded to in my other post (#2), and even though I obviously haven’t seen the items that are currently on the common property of your building, your owners corporation would be in my opinion most unwise to in any way legitimise a continuance of that practice.
If it does perhaps because it regards the presence of the current items as innocuous, that would amount to it granting somebody a “licence” to use the common property, that to be properly decided at the AGM comes under under Sect 65B of the Act, where a special resolution (as opposed to one determined by a simple majority) is required, that to PASS requires no more that 25% of those voting to so so against the motion; or conversely by at least 75% voting in favour – with both percentages determined in accordance with the unit entitlement of their lots (i.e. a poll vote).
If as you expect, your strata manager is going to support permitting the occupant’s bike, table, and whatever else may follow to remain on the common property, then you might want to give him a heads-up that any valid decision by the Meeting will have to be on the the basis of a vote on an specific agenda motion, not under “general business”, and be listed there as a special resolution under Sect 65B of the Act.
Just an aside comment here from the ACT:
In the ACT the EC can approve ‘minor uses’ of the common property if satisfied that the use would not ‘unreasonably interfere with the reasonable use and enjoyment of the common property by other members of the corporation’. On the other hand, non-minor exclusive uses of common property require a ‘special privilege’ which has the very high threshold of requiring an ‘unopposed resolution’. IE if someone wants to use the common property in the ACT, there is an easier way than in NSW for minor stuff and a harder way than in NSW for the major stuff.
Here, the EC can approve the minor stuff without the need of bylaws for trivial things that wouldn’t bother anyone. Since ‘minor uses’ can be dealt with formally and properly by the EC, this avoids encouraging the pragmatic ‘turning of a blind eye’ that might lead to a more general and unfortunate disregard for proper process.
What is ‘minor’ is whatever the EC feels it can comfortably defend in the circumstances. Exclusive use of a few square meters of common property could be minor in one location but not defensible as minor in an other situation. The Act gives examples such as an awning or an air conditioner. An awning that obstructs a path would not be minor in spite of the example in the Act but, in the context of a large site, a veggie garden plot that is subject to rules of a community garden could be a minor use.
For anyone considering reform of strata legislation, I recommend the ACT’s approach to this topic.
Perhaps the owners could find a place to safely set aside for bike storage? No longer cluttering the stairwell but providing a useful service for residents?
With reference to Sect 138 the NSW Strata Schemes Management Act, an owners corporation is required to “exercise, a function conferred or imposed by or under this Act or the by-laws in relation to a strata scheme”, and you have asked them to exercise just one of those functions by way of your agenda motion.
I’m beginning to this that there’s more in the mortar than just the pestle here, but if a majority of those present at the meeting (both personally and by proxy) decide not exercise the function requested in your motion, then your best recourse is under Sect 138(1) & (2a) where an Adjudicator may make an Order to settle the matter in such circumstances.
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