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  • #11885
    Ziggy
    Flatchatter

      The Strata Manager for our building has resigned as did the last one two years ago.

      On the agenda for an upcoming AGM, the SM named a Strata Committee member for the reason he has quit. I believe this was the reason the previous SM resigned as well.

      If this is the case, can the Owners request that this SC member no longer serve on the SC?

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    • #30382
      Jimmy-T
      Keymaster

        @Ziggy said:
        … can the Owners request that this SC member no longer serve on the SC?  

        Section 238 of the Act (see below) allows NCAT to order that a committee member be removed from the committee or that an office-bearer be removed from office (or both).

        The key elements in this would be that you can prove that the miscreant committee member has failed to comply with the Act, the regulations or the by-laws of the strata scheme, or has failed to exercise due care and diligence, or engaged in serious misconduct, while holding the office.

        If you gather evidence of that (perhaps including letters from the previous SMs) and can get the support of at least one or two other owners, you could seek mediation at Fair Trading (compulsory) followed by orders.   It may be that the person concerned might quit when they see that you are serious.  But don’t issue empty threats in the hope that they cave in.  Be prepared to go the whole way and have all your ducks lined up before you make the first move.

        238 Orders relating to strata committee and officers
        (1) The Tribunal may, on its own motion or on application by an interested person, make any of the following orders:
        (a) an order removing a person from a strata committee,
        (b) an order prohibiting a strata committee from determining a specified matter and requiring the matter to be determined by resolution of the owners corporation,
        (c) an order removing one or more of the officers of an owners corporation from office and from the strata committee.
        (2) Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has:
        (a) failed to comply with this Act or the regulations or the by-laws of the strata scheme, or
        (b) failed to exercise due care and diligence, or engaged in serious misconduct, while holding the office.

        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.
        #30669
        Kodger
        Flatchatter

          This is interesting information, we have a similar but not the precisely the same issue with a member of our EC.

          At our AGM this year this member of the EC used his voting power to block the two special resolutions (The only Resolutions on the agenda) on the agenda because in his words “an email he recieved a couple of years ago hurt his feelings” As he has 4 bedrooms and the “ear” of another owner with 2 bedrooms his voting power is strong to the detriment of the building and the OC.

          #30671
          dwa
          Flatchatter

            Interesting regulations where it seems that 1 lot does not equal 1 vote ….

            #30672
            Jimmy-T
            Keymaster

              @Kevin Hodge said:
              At our AGM this year this member of the EC used his voting power to block the two special resolutions … because in his words “an email he recieved a couple of years ago hurt his feelings” 

              If this was a common property rights by-law, you can take the recalcitrant owner to Fair Trading for mediation, pursuant to seeking orders under Section 149 (below) of the Act. And you make it clear in the committee minutes that that the reason for this action is their unreasonable refusal to pass the by-law.

              Their superior levels of unit entitlements will mean that they are also paying more for the privilege of being pursued through NCAT.

              There are other provisions for resolving non-property rights issues through orders at NCAT.  Owners who have a majority of unit entitlements also have a responsibility as well as rights

               

              149   Order with respect to common property rights by-laws

              (1)  The Tribunal may make an order prescribing a change to a by-law if the Tribunal finds:

              (a)  on application made by an owner of a lot in a strata scheme, that the owners corporation has unreasonably refused to make a common property rights by-law, or

              (b)  on application made by an owner or owners corporation, that an owner of a lot, or the lessor of a leasehold strata scheme, has unreasonably refused to consent to the terms of a proposed common property rights by-law, or to the proposed amendment or repeal of a common property rights by-law, or

              (c)  on application made by any interested person, that the conditions of a common property rights by-law relating to the maintenance or upkeep of any common property are unjust.

              (2)  In considering whether to make an order, the Tribunal must have regard to:

              (a)  the interests of all owners in the use and enjoyment of their lots and common property, and

              (b)  the rights and reasonable expectations of any owner deriving or anticipating a benefit under a common property rights by-law.

              (3)  The Tribunal must not determine an application by an owner on the ground that the owners corporation has unreasonably refused to make a common property rights by-law by an order prescribing the making of a by-law in terms to which the applicant or, in the case of a leasehold strata scheme, the lessor of the scheme is not prepared to consent.

              (4)  The Tribunal may determine that an owner has unreasonably refused consent even though the owner already has the exclusive use or privileges that are the subject of the proposed by-law.

              (5)  An order under this section, when recorded under section 246, has effect as if its terms were a by-law (but subject to any relevant order made by a superior court).

              (6)  An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order.

              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.
              #30673
              Jimmy-T
              Keymaster

                @dwa said:
                Interesting regulations where it seems that 1 lot does not equal 1 vote ….  

                Given that any owner can call for a “poll vote” at any time, and that is decided by unit entitlements, and all special resolutions and elections are decided by poll votes as a default, a simple show of hands is increasingly a rare event, especially in larger schemes.

                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.
                #30675
                spmanager
                Flatchatter

                  I had the similar situation of a committee member being the reason managers resigned. The owners decided to deal with the issue by. Always voting at each AGM for the number of committee positions to be One less than the number of nominees. So if 7 people wanted on the committee then they voted for there to be a committee of 6 members. Unsurprisingly the painful owner never made it onto the committee. Its legal and I think fair, as it shows that the owners don’t want that person on the committee.

                  If you can’t get the owners to reign in the member because they can’t be bothered to. Then I am sorry to say welcome to the nightmare of owner apathy. It is the one single hindrance to the effective running of a property.

                  #30676
                  Faraway girl
                  Flatchatter


                    @dwa
                    said:
                    Interesting regulations where it seems that 1 lot does not equal 1 vote ….  

                    Never does dwa.  We can’t get our by laws adopted because the 9 owners of this 14 lot apartment building only hold 61% of the lot entitlements. We all live here and want these by laws adopted. The developer can’t sell his own apartment or the other apartments he still owns and these give him a 39% lot entitlement. In order to change common property ( we want to alter the ornamental pool area) or adopt or change by laws you are not able to have more than 25% of lot entitlements voting against it. So guess what? The developer does not live here, he visits occasionally, but he has told people that all the owners here are “scum” and he makes life difficult by voting against every special resolution just because he has some unsold apartments and his own holiday apartment. 

                    #30677
                    Sir Humphrey
                    Strataguru

                      @Faraway girl said:

                      We can’t get our by laws adopted because the 9 owners of this 14 lot apartment building only hold 61% of the lot entitlements. We all live here and want these by laws adopted. The developer can’t sell his own apartment or the other apartments he still owns and these give him a 39% lot entitlement. In order to change common property ( we want to alter the ornamental pool area) or adopt or change by laws you are not able to have more than 25% of lot entitlements voting against it. So guess what? The developer does not live here, he visits occasionally, but he has told people that all the owners here are “scum” and he makes life difficult by voting against every special resolution just because he has some unsold apartments and his own holiday apartment.   

                      If all but one owner are unanimously in favour of various motions but lack the necessary entitlements for a special resolution, then I think you have a good chance if you seek an order from the Tribunal to give effect to the failed motions. In the ACT strata legislation the Tribunal can give an order giving effect to a failed motion on the grounds that opposition to the motion was unreasonable. I expect other jurisdictions have similar provisions. You would need to provide the minutes of the meetings where the motions failed, the voting numbers (and/or have all 9 owners as parties to the application to the Tribunal), any background on the motion that was presented to the meeting or a new statement about why the proposals are such reasonable proposals. If you are lucky, the developer won’t even bother to show up to defend his position and you could get what you want easily. 

                      #30681
                      Faraway girl
                      Flatchatter

                        Many thanks Sir Humphrey. I will check our Strata Scheme Management Act 2015 to see if I can find a similar arrangement and we will then look to the Tribunal. I think for the most part in NSW the first step is mediation so we will go down that path if necessary. Not sure if mediation applies to special resolutions but will also check that. All nine owners will be relieved if the Tribunal finds in our favour. 

                        Aha, I have read Jimmys reply to dwa and all the info from the Act is there. Thanks Jimmy. Looks like we are headed to mediation and then NCAT.

                        #30683
                        Kodger
                        Flatchatter

                          Interesting there are other Strata Schemes experiencing the same issue, Thanks Sir Humphrey, good info there!

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