This article discusses strata secretary conduct in NSW, explaining what owners can do when a newly appointed secretary makes unilateral decisions that disrupt a previously peaceful strata scheme.
Question: A new owner is disrupting our previously peaceful strata scheme. After establishing themself as secretary, they have removed plants and complained about pets. What do we do?
A couple recently bought a townhouse in our complex of seven, and one has established themself as secretary.
Without consultation, the new owner poisoned plants, including established trees and hedges.
One lot has had three cats for 15 years. There have been no complaints from neighbouring owners over the years, but the new owner has complained about the number of cats to the strata manager. Can the pets be removed?
Answer: The Strata Legislation Amendment Bill 2024 (NSW) has several proposed amendments relating to the conduct of strata committee members.
It can be frustrating in strata to either have a new committee member who makes decisions/proposals you don’t agree with, or to become the subject of unwanted attention from a committee member.
While there are protections under strata legislation in NSW against unreasonable by-laws, etc., sometimes a committee member convinces the rest of the committee or the strata manager to fulfil requests which are not only detrimental to an individual owner, but also counter to the Act and/or beyond the powers of the committee member to instruct.
While there are some grey areas in relation to your queries, there are also some quite clear guidelines in the Act as they currently are, and, if current proposals are passed in the Parliament, will help in similar situations to yours in the future.
Firstly, the garden-related issues.
Assuming the changes are on common property, the committee has a broad remit under delegated authority to maintain the garden. Significant changes, such as the installation of retaining walls, gardening beds, or irrigation systems, would still require special resolution approval at a general meeting under Section 108 of the Act.
Treatment of individual plants, no matter where on the common property, would probably generally be considered as a matter for committees to consider and deal with themselves (if not removal of a large tree, planting of a stand of trees, etc.) without any further approvals or discussions with individual owners. If such a modification is proposed but not yet acted on and a significant number of owners disagree, a general meeting might be required to be held under Section 19 of the Act to preclude such action from being undertaken.
That said, the delegation to the committee to undertake the general repair and maintenance of common property usually allows committees to undertake garden works – some of which may be contrary to the interests of an individual owner.
In an ideal world, all such gardening works would be conducted in a consultative fashion – by both owners and committees – but we live in a world far from ideal.
As a general principle, no owner should be undertaking gardening works on common property without sign-off, at least from the committee (keeping in mind the owners corporation can overrule the committee at a general meeting). And, while it would be ideal that gardening works affecting individual owners/residents are done in consultation with those owners/residents, the committee is not necessarily bound to undertake such consultation, which is different to the requirement for lot owners to undertake work on the common property with only permission from the committee or the owners corporation.
While this might seem an unreasonable disparity of power, that is the nature of delegating authority to a committee at each AGM election as specified under the Act.
If you wish to propose works that you think may not be approved by the committee, you can require a motion (all owners can make such a requirement) to be presented at the next general meeting for such works to be approved. However, an upgrade to common property will require a special resolution – i.e., no more than 25% or less of cast votes being against such a motion (on a unit entitlement basis).
The position on your second question is much more straightforward. Since the changes to the Act enacted in December 2023, the number and nature of pets have no bearing on whether those pets are allowed if they are not causing disturbance/nuisance to other occupiers of lots. Disturbance/nuisance can include things like noise (constantly barking dogs), soiling of common property (usually not an issue if you clean up after them), or aggressive behaviour towards other occupiers.
Various new sections came into effect in December 2023, namely Sections 105A, 137B, 139A, 276A.
If your cats are contained in the lot, and/or are cleaned up after on the common property and don’t cause a nuisance to other occupiers, a ruling against them would be almost impossible for the committee/secretary to secure. Any direction for you to remove the cats by the committee and/or strata manager would almost certainly be unenforceable. If I were you, I would not comply with any such direction without NCAT orders having been issued after application by the OC.
We now enter slightly speculative territory in relation to your position (and the secretary’s) in the future, in light of recently tabled legislation which is yet to be passed by the NSW Parliament.
The Strata Legislation Amendment Bill 2024 (NSW) has several proposed amendments relating to the conduct of strata committee members.
These include:
- requiring committee members “to exercise [their] functions with honesty and fairness, with due care and diligence and for the benefit, as far as practicable, of the owners corporation”;
- requiring committee members “to comply with the [Act] and the regulations under the [Act]”;
- requiring committee members “to not behave in a way that unreasonably affects a person’s lawful use or enjoyment of a lot in the strata scheme or the common property”;
- requiring committee members to undertake training – committee members “who [fail] to complete the required training will cease to be a member of the committee”; and
- to lower the threshold to remove an office bearer at a general meeting to a simple majority (currently a special resolution)
If the Parliament passes these amendments, it will be interesting to see what, if any, change in committee behaviour results.
Some of those explicit requirements certainly are not currently being adhered to by all committee members in NSW.
This post appears in Strata News #729.
Sean McNamara
Strata, Meet Data
E: sean@stratameetdata.blog
P: 0414 920 726
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