This article discussing the relationship between the strata manager and the strata council in WA has been supplied by Anthony Quahe, Civic Legal.
In response to Civic Legal’s article published earlier this year regarding strata manager’s duties, a number of questions arose concerning the relationship between strata managers and the strata council in specific situations.
This article will address some of the new responsibilities that strata council members and strata managers will have once the amendments to the Strata Titles Act 1985 (WA) (the Act) come into effect, expected to be by the end of this calendar year.
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Key Points
- The duty of strata council members’ to act honestly, with loyalty and in good faith will extend to their relationship with the strata manager
- Strata managers will have a duty to exercise a reasonable degree of skill, care and diligence in the performance of their functions
What is the difference between a strata council and a strata manager?
The strata council is the group of lot owners elected to represent all the lot owners (the strata company) in a strata scheme. The strata council decide on matters that arise for the strata company, such as the maintenance of common property, enforcing by-laws and convening General Meetings.
Council members are the main decision makers and bear the responsibility that goes with the role. Strata managers merely carry out those decisions under instructions from the council.”
A strata manager is a person or company hired to assist the strata council in the management of the strata scheme. They can be responsible for tasks ranging from financial management and administrative support to maintaining common areas, as directed by the strata council.
What responsibilities do members of the strata council have?
Before the amendments, there were no formal requirements for a strata council to act in the best interests of the strata company. However, the amendments create new standards as to how council members conduct themselves as office bearers.
Once in force, section 137 of the Act will require council members to act honestly, with loyalty and in good faith at all times.
In performing their functions, council members will also have to exercise the degree of care and diligence that a reasonable person in their position would be reasonably expected to exercise.
An example of the strata council fulfilling these standards could be responding in good time to the strata manager. For instance, the strata manager might need special financial authorisation from council members when major plumbing damage has begun to cause flooding in some common areas.
Council members would show care and diligence by responding quickly to the strata manager’s request for directions.
What can the strata manager do if the strata council contravenes its duties?
If the strata council appears to be contravening the Act, such as instructing the strata manager to spend money on items that have not been budgeted for, then strata managers would be in a difficult position.
Council members are the decision makers for the strata scheme and bear the responsibility that goes with the role. On the other hand, strata managers implement the decisions of the council.
However, once in force, section 146 of the Act will impose duties on strata managers such as having to exercise a reasonable degree of skill, care and diligence in the performance of their functions. If a strata manager discovers that the council’s instructions are in breach of the Act, they should warn the council against their conduct. By checking if a contravention has occurred (e.g. by taking legal advice) and then giving the warning, the strata manager would show that they exercised appropriate care and diligence.
If the council does not heed the strata manager’s warning, the strata manager could consider terminating their contract with the strata company.
This is because section 146 also introduces the obligation on a strata manager to ‘’act honestly and in good faith’’. It would not be achieving that standard of conduct if it helps a council act in ways that breach the Act.
Consequently, a strata manager will have to decide whether the risk of itself breaching the Act outweighs any commercial benefit in helping the council to breach it.
Can a strata manager take the strata company to the State Administrative Tribunal (SAT)?
Under the Act, strata managers provide services to the strata company. It is not their role to enforce the law on erring strata companies in the SAT.
Strata managers can take the strata company to the SAT for various matters, such as a dispute over the terms or performance of its contract with the strata company.
However, the Act does not contemplate strata managers engaging in enforcement of the Act with regard to any contravention by the strata company in the way described above.
Conclusion
It is very positive that the Act has brought in new duties around acting honestly, with loyalty, and in good faith as well as the duty on strata managers to exercise a reasonable degree of skill, care and diligence in the performance of their functions.
These new legal duties should promote better management of strata schemes around Western Australia.
Have a question about strata manager’s duties under the WA reforms or something to add to the article? Leave a comment below.
This post appears in Strata News #292
A PDF Version of the article can be accessed here.
Anthony Quahe
Managing Principal
Civic Legal
E: [email protected]
T: 08 9200 4900
Disclaimer: This article contains references to and general summaries of the relevant law and does not constitute legal advice. The law may change and circumstances may differ from reader to reader. Therefore, you should seek legal advice for your specific circumstances. The law referred to in this publication is understood by Civic Legal as of publication date.
Read next:
- WA: Resolving Strata Disputes Under the Strata Title Act Amendments
- WA: Q&A Where can I make strata manager complaints in WA?
1 May 2020 Update:
The amended Strata Titles Act 1985 took effect in Western Australia on 1 May 2020. It includes grace periods for some new requirements to ensure those affected have adequate time to meet them. This information has been taken from Landgate: Timelines for Change.
Improving strata management and by-laws: Changes to the role of strata managers
| What’s new? | Timeline for change | Who needs to know? |
There will be clear statutory duties for strata managers which require them to:
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Started 1 May 2020. |
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Strata Managers Will Also Need To:
| a) Attain educational qualifications. | By 1 May 2024. (Four years after commencement). |
| b) Have a written contract between them and the strata company, specifying the functions they are contracted to perform. | Starting 1 May 2020, all new contracts must meet the new requirements. There is a six-month grace period for existing contracts to reflect the new requirements (to 1 November 2020). |
| c) Obtain a current national criminal record check for themselves and employees who perform strata management functions. | Starting 1 May 2020 for all new contracts. There is a six-month grace period for existing contracts (to 1 November 2020). |
| d) Have professional indemnity insurance coverage. | Starting 1 May 2020 for all new contracts. There is a six-month grace period for existing contracts (to 1 November 2020). |
| e) Lodge an annual return to Landgate with general information about the schemes they manage. This annual return will enable the government to determine if the licensing of strata managers is viable or required in the future. | The first annual return will need to be lodged with Landgate between 1 January 2022 and 31 March 2022, and then annually after that for the next four years. |
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All we need now is for the State Administrative Tribunal to actually hold offending councils and strata managers accountable instead of allowing them to use owner funds to pay mouthpieces to unnecessarily frustrate their self represented victims
Thank you Jenny Walsh & NH for your comments.
We have received the following reply from Anthony Quahe, Civic Legal:
It is unfortunate when a strata manager and/or council do not appear to be serving the best interests of all the owners and we appreciate the frustration of the readers. Owners will at least be able to rely on the new standards and duties that will govern strata managers and the council when dealing with such issues once the amendments come into force.
The amendments include more regulation and more accountability of strata managers and members of councils. For more information, see Strata Titles Amendment Bill 2018 Explanatory Memorandum here.
Disclaimer: This comment contains references to and general summaries of the relevant law and does not constitute legal advice. The law may change and circumstances may differ from reader to reader. Therefore, you should seek legal advice for your specific circumstances.
For many years, our property has been managed by the same strata management and same council of owners who have a personal relationship with the strata manager that she keeps the same owners elected on the council of owners every year and helps to vote them back on to protect all their breach of the Strata Tiles Act by-laws that is proven.
Chairperson votes for anything that pleases them with all the proxies they have and don’t take into considerations other owners interests and strata management allows this to happen as they also use proxies to vote on strata company business.
Our strata manager and council of owners are so corrupt and take advantage of the fact that many owners have a don’t care attitude or can’t be bothered getting involved but those who do get involved don’t get a response or any help and are basically shut out of their own property.
Strata manager just helps the council of owners only yet we are all paying the same fees for the service. Our property is a tragedy story as a result of a group of people abusing the system to do whatever they want and they know that owners, particularly in older complexes don’t have the means and money to pursue matters.
My experience in Strata is the system is so corrupt and disadvantaged owners have no hope of getting help when Lawyers are either charging a fortune that owners cannot afford or don’t want to help owners as they get more of their business from strata managers.
I really don’t see any good changes into the new strata reform as it’s designed to be a failure to favor and benefit those who wrote it and those who have money.
What about when the “Council” representative is acting and has acted in contravention of the Act by building whatever she likes on common property without the consent of all the owners and without dissent. In other words we have a dishonest crook representing us as Owners and she can basically build wherever she wants without reference to us or the proposed strata manager they want to appoint. Over the last 30 years all 7 owners in our Strata Co would hold an AGM each year and we had a Chairperson, Sec and Treasurer as normal. Then one of the owners decided he would build a shop on the common property at the rear of his house in order to enhance it to sell it on. The Chairperson and I objected pursuant to the Act but this owner came to the next meeting and told the Chairperson that unless he voted for the shop, he would sack him as Chairperson and he would take over and form a “Council” made up of his mates (4 of the other owners) who were in agreement with his shop. The Chairperson and I were excluded from the “Council” which passed an illegal motion to allow the shop on the common property. The owner thumbed his nose at us and our request that he comply with the Act but he went ahead and build it anyway. This owner is a solicitor.
The Chairperson and I took him to SAT but on the day of the hearing the owner said he had removed the shop building because the new owners he’d sold to didn’t want it. It cost the Chairperson and myself $24,000 in legal costs to stop this man.
Now the “Council” is headed by another person, one of the owner’s mates supposedly representing all the Owners (which is not true), She has already built on the common property without the agreement of all the Owners and is likely to build further in contravention of the Act. She will be “representing” us and any Agreement between the Strata Manager and the “Council” is fraught with danger. Is there any way ALL the owners should contract with the Strata Manager and thereby avoid having to appoint one individual – in this case someone we simply cannot trust who has already proven they breach the Strata Act.
Admin: Names and some other details in this post have been redacted.