Question: The roof on our older building needs the waterproofing checked but the committee is unable to reach a decision. We are awaiting mediation, but what else can we do?
The roof of our building is a cement slab that is 40 years old. The waterproof membrane has never received any maintenance. We live on the ocean and receive a significant amount of saltwater damage and have had to fix concrete cancer on balconies and repair rust spots. There are 5 people on the committee of 9 who don’t believe there is anything wrong with the current state of the rooftop and we are currently in the process of awaiting mediation.
In the meantime the chairperson has put forward a motion to go to the next committee meeting regarding access to the roof as follows: MOTION: That the persons authorised to have unqualified access to the roof are the Chairperson, The Secretary, and any person so authorised by five members of the Executive Committee, for the sole purpose of discharging their duties as Chairperson or Secretary. Unqualified access means access to that person alone unless any other persons have previously been authorised by five members of the Strata Committee.
Answer: Any issue concerning the strata committee and validity of decision making should be brought to the strata manager’s attention at first instance.
This is potentially the responsibility of the Owners Corporation in accordance with section 106 of the Strata Schemes Management Act 2015. On the information provided it is unclear whether there is a strata manager appointed. I suggest that any issue concerning the strata committee and validity of decision making should be brought to their attention at first instance.
The motion appears challengeable. A chairperson at a meeting may rule a motion out of order if the chairperson considers that the motion, if carried, would conflict with the Strata Schemes Management Act 2015 or the by-laws of the strata or would otherwise be unlawful or unenforceable.
There are duties a strata committee is required to comply with. Section 37 provides that each member of the strata committee of an owners corporation is to carry out his or her functions for the benefit so far as practicable of the owners corporation and with due care and diligence.
If the owners corporation are not discharging their duties in accordance with the above and Act an application can be submitted under the Act for a compulsory manager to be appointed.
On application to the NSW Civil and Administrative Tribunal the Tribunal may make an order appointing a strata managing agent to exercise all the functions of an owners corporation or specified functions.
In your set of circumstances if you feel the strata committee is not exercising their functions of the owners corporation as set out above and are concerned, you can consider bringing an application for a compulsory strata manager.
This post appears in the August 2021 edition of The NSW Strata Magazine.
Pierrette Khoury
Khoury Lawyers
E: pierrette@khourylawyers.com.au
P: 0415 459 486
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