Can our strata scheme in NSW be operating with no meetings? We are also having trouble getting maintenance done. This post has been answered by Paula Byrnes, Strata Gophers and Karina Heinz, Progressive Strata Services.
According to Strata Community Association (NSW), here is the definition of an Annual General Meeting (AGM):
- The AGM is held by the owners corporation. It is a yearly meeting of owners and other interested parties (as noted on the strata roll) and is legally required to be convened once every financial year. Legislation defines the way the AGM is convened and the compulsory motions to be considered.
Question: We are having difficulty getting services fixed in our older small unit block. We also have no strata meetings and the same 2 people have been on the committee for years.
I live in a small unit block that was built around 1970.
We have a security door that is automatically opened from switches within each unit. Visitors buzz individual lots via an intercom system which is the original system. The automatic switch device has stopped working and so we are required to walk down 2 to 6 flights of stairs to let people in via the security door.
A couple of residents have spoken to the strata committee secretary to get it repaired but he has said that it will cost a lot of money. He had the original company come to fix it and they informed him that it will need to be replaced. He did not receive any quotes or anything in writing about the cost associated with this. I am concerned about the safety implications of not having this lock fixed.
Also we do not have AGMs and there are no regular strata committee meetings as the strata committee secretary said they are not necessary. We have had 2 meetings in the last 8 years. We also do not have a 10 year plan or capital works fund. The same 2 people have held strata committee positions (secretary and treasurer) for as long as I have been an owner. There are now only 3 owner occupiers left in the building.
Answer: There is a lot of strata legislation on the AGM so it is hard to refute that it doesn’t need to be held or that no meetings are required.
I am sure you have read articles in the past on the scheme’s obligation to repair and maintain the common property, however, what is often not in the advice is the definition of common property. I believe it is important here. Chances are that given the building was built (and I assume strataed) in the 1970’s that the intercom/security to which you refer did not exist at the time the strata plan was registered, so then it is not common property in that sense.
Further, for a long time a bylaw was required for the scheme to obtain additional common property and I am guessing this wasn’t done either. In which case, there may not be a leg to stand on to press the scheme to fix the security system.
However, given you are clearly self-managed it is highly likely the secretary is not aware of all this. For now, I would simply write to him (and give a copy to the other person on the committee) advising them that they are in breach of their obligations to repair and maintain under S106 of the Act and refer them to Siewa’s case. Here is what Judge Brereton said:
“4 The duty to maintain involves an obligation to keep the thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to serve the purpose for which it exists. Thus the body corporate is obliged not only to attend to cases where there is a malfunction but also to take preventative measures to ensure that there not be a malfunction. The duty extends to require remediation of defects in the original construction of the common property. And it extends to oblige the owners corporation to do things which could not be for the benefit of the proprietors as a whole or even a majority of them. 5 It follows that as soon as something in the common property is no longer operating effectively or at all, or has fallen into disrepair, there has been a breach of the s 62 duty.……..”
No court case since has altered the very strict obligation the Judge indicated here. You could indicate you plan to refer the matter to NCAT if it isn’t addressed. You may take it to mediation if push comes to shove but I wouldn’t try my luck at the Tribunal. So if this doesn’t work I suggest you write a letter and a motion to place on the next meeting agenda:
4 Inclusion of matters on agenda
- Any owner, or any person entitled to vote at a general meeting of an owners corporation, may require a motion to be included in the agenda of the next general meeting of the owners corporation.
- The requirement is to be made by written notice given to the secretary of the owners corporation that:
- sets out the required motion, and
- states the name of the person making the requirement, and
- includes an explanation of the motion of not more than 300 words in length.
- The secretary must give effect to the requirement.
- However, if the requirement is made after notice has been given of the meeting, the secretary must include the motion in the agenda for the next subsequent meeting.
- An owner or a person may make a requirement even if the owner or person cannot vote because the owner is an unfinancial owner.
which takes us to point two: the lack of AGM.
AGM means Annual General Meeting, hence the meeting is supposed to occur annually.
This has become a bit more flexible under the current legislation, but it is still required to occur. You may point out that should the Secretary fail to do this you can go to NCAT for a compulsory appointment (of a licensed strata manager) under S237:
This order is made where the applicant can show that the scheme is dysfunctional – which means various sections of legislation are being breached.
At the moment the scheme is in breach of Section 18 of Schedule 1
18 AGM must be held
An owners corporation must hold an annual general meeting once in each financial year of the corporation.
6 Required items of agenda for AGM
9 Additional matters to be included in notice of AGM
As you can see there is a lot of strata legislation on the AGM so it is hard to refute that it doesn’t need to be held or that no meetings are required. It is very clear that it does and what it needs to cover.
So again I suggest you politely ask for it to be done but definitely if it isn’t called within 3 weeks of your request, I would apply to Fair Trading. They will mediate and inform the secretary he does have to have meetings. If he agrees you should seek a consent order with a timeframe in which he agrees to call the meeting. If he doesn’t, you can then return to NCAT and they will sort things out, probably by taking the affairs out of his hands.
This post appears in Strata News #286.
Question: I own an investment apartment but do not live close. The Strata Manager tells me they have no meetings, therefore there are no minutes to send. How is the complex running without meetings?
I own a Strata unit in Sydney but live in the North of the state. As a result, I cannot take an active role in the running of the Strata.
In the last few years, I have requested to receive copies of the minutes from the Strata Committee meetings via the Strata manager. Each time I have been told there are no meetings, apart from the first one post the AGM.
According to the Strata Manager, there are no meetings held therefore no minutes. Yet during that time the building has been painted, the tree in the garden pruned and other work has been done at the complex.
How can these decisions have been made without meetings? How can I find out if there are no minutes in existence?
Answer: The first step is to carry out a strata report.
The first step is to find a strata inspector who will carry out a strata report specifically listing all the meetings that have been held in the past 3 to 5 years. The report will also include income and expenditure for the same period. I’d recommend that the strata inspector gets a copy of the Managing Agency Agreement as well.
Of course the owner can do their own, but they’ll need a professional strata report if you have to go to Fair Trading.
IF the scheme is under FULL MANAGEMENT and not part management, the second step is to submit an application to Fair Trading for mandatory strata management. If they have full management, the Strata Manager is lax, to say the least, and may well be in breach of the agreement for not carrying out their delegated duties.
If the Strata Manager can’t prove they have advised the lot owners/Committee in accordance to their legal obligations, then the owner should make a formal complaint against the Strata Managing Agent. This proof would preferably be notes added to minutes of meetings, but even emails are better than nothing.
This post appears in Strata News #269.
- NSW: How to Appoint a Compulsory Strata Manager under Section 237 of the Strata Schemes Management Act 2015
- NSW: Q&A Strata Manager Complaints and Bullying
If you have a strata question about no meetings, some tips or something to add to the article, please leave a comment below.