Owners refuse to approve essential repairs

It’s time your neighbours learned the facts of strata life, one of which is that they have an almost unlimited responsibility to maintain and repair common property.

Now, they can continue to dig their heels in but you or any owner could toddle along to Fair Trading and NCAT and seek orders requiring the Owners Corporation to fulfil its legal obligations.

If it gets to NCAT, one serious problem is that the Members have it within their powers to appoint a statutory manager who will take over from the owners and start making decisions which could turn out to be very expensive indeed – and much more so than the current estimates.

Be clear on this, failure to maintain common property is one of the key factors in NCAT deciding that a strata scheme is seriously dysfunctional and may well trigger the appointment of a statutory manager whether you want one or not.

Right now the owners have the opportunity to fulfil their obligations in a way that suits the majority, and that could mean, for example, a phased work schedule financed by a special levy or a strata loan (or a combination thereof).  Failure to do anything could very easily result in being ordered to pay for work which is more expensive, on a time schedule that suits no one and where there is no opportunity to negotiate compromises.

It’s time your neighbours got their heads out of the sand. I’m sure someone will come out and say that they can do what the majority wants – usually a bloke whose cousin once met a lawyer at a barbecue – but they have legally enforceable obligations and if they won’t face up to them, the Tribunal is highly likely to appoint someone who will.

And if that argument doesn’t convince them, seek mediation at Fair Trading and maybe then they will take you seriously.

Sir Humphrey wrote:

I assume the NSW legislation has a similar provision

In NSW  would go for orders under Section 232 (2) while keeping a watchful eye on Section 237:

232   Orders to settle disputes or rectify complaints

(2) Failure to exercise a function

For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if—

villageidiot wrote:

We three are the ones who have tried to get the rest of the owners to approve these repairs at the last 3 AGMs to no avail. So we are trying to get the job done and aren’t being negligent.

It’s not a question of proving that you are negligent.  You can go to NCAT and ask them to issue orders overturning decisions not to maintain and repair common property.

You would only need super-majorities if you were changing or improving common property, so the 51 percent rule applies.  And don’t forget, as someone has already pointed out, you may already have  a mjority, depending on how your unit entitlements fall.

I also heard a whisper the other day that strata committees can act in defiance of the owners corp if they are doing so to fulfil their statutory duties.  Maybe talk to a friendly strata lawyer about that.

Or have the “easy way … hard way” chat with your owners. They can agree to do this the easy way – just get it done and pay the bills – or the hard way, fight it at the Tribunal, pay for lawyers and still have to pay to get it done.

Hey villageidiot,

Speaking as someone who took a do-nothing committee to NCAT seeking a compulsory manager, I offer the following observations:

1. Jimmy is right about NCAT focusing on  OCs doing their job ie s. 106 SSMA;

2. Jimmy is right about interested owners applying to NCAT for a compulsory manager, when the OC is inattentive to its obligations, s. 237 SSMA:

3. In my experience, NCAT’s ordering via s. 237 is rare and not common. I failed to get a compulsory manager and I had a list of failures. Common is for NCAT to direct the OC to do certain works (from the list the applicant provides in his/her statement of claim). The problem here is that there may be quite a lengthy period of time from when your statement of claim hits NCAT’s inbox and NCAT hears your allegations;

4. To me, you have two options, given you’re on the strata committee and the “numbers” in the strata are stifling you doing your job:

(a) You (in your own right as an owner or a strata committee member) can apply to NCAT (or ask the strata manager to apply in the name of the strata committee) listing what needs to be done; the fact that all members of the strata committee agree they need to be done and that (if it is the case) that you value your strata manager’s contribution to managing these works. If NCAT agrees with your application then it will order the OC do certain tasks, from the list you provide of what needs to be done. The strata committee can then go ahead and do the works in the knowledge that  the go-ahead for these matters  is in the bag; or

(b) If you believe the above matter will require repeated appearances at NCAT over time AND you don’t have the time, stamina or interest for such AND if you believe that your strata manager is on board with your views such as what needs to be done and ideally by whom, ask him/her for a quote to compulsory manage your strata via a s. 237 order. Ask for a quote for managing the strata for 1 year. Negotiate if you can with him/her as often agents fleece OCs in such cases. Once you’re happy with the price offered, add the quote to your application to NCAT indicating the many merits of not only compulsory management, by compulsory management by the current strata manager.