Strata Law-common property

hello,
I have an investement property on strata title.
I understand that after reading the strata act(im in adelaide) that any decisions made in relation to commom property(in this case, the building of new retaining walls) need to be via a special resolution vote.
Recently we had two votes that went ahead re the building and funding of the walls. Both went under a 'common vote'.
I have put forward a complaint, however am being pushed aside with my concerns. Am I right? or not?

 

Not enough info. You haven't stated how many units in the complex and what your unit entitlement is? They may have had sufficient "yes" votes at the AGM or in writing. Also will depend of whether works were a necessary repair or a new feature. Also depends on what authority your council of owners have to make decisions on behalf of the group.

 

I am one unit amongst 8. A couple were critical, however all will be redone to match. They got 50% on both votes. From what I understand, and also verified by legal aid, due to being structural works on common property it should of gone under special resolution.

 

I'm not sure what the issue is? Your Strata Manager obviously had this on the Agenda for an AGM or EGM and a vote was taken and passed as using your words "two were critical".

You say you are a 1/8 th owner but were obviously not present when vote was take given your comment "from what I understand".

If you want to have more say in what happens in your strata building you need to be an active member of the council of owners and attend these meetings.

Apologies if I have misinterpreted your situation.

 

I was overseas at the time. However was able to view the agenda.
The second vote that went ahead was not in the the agenda, hence got 'my back up'. There were two resolutions for this listed in the agenda, however at meeting, they came up with a third option, which was voted on. This was very different from the first two options(which were in the agenda).
At the end of the day, yes we need to be pro active in this circumstances, however I assume it's Stratas job to make sure they follow the strata law at all meetings? Hence the reason we employ them?

 

AGM agendas are guides. Agenda items can lead to other motions and "other business" can be almost almost anything. If you weren't going to be there and you had concerns you should have had representation or asked to phone in.

In the first post you said this was pushed through as a "common resolution". I take it you mean "ordinary resolution". From what you've said about the motion it ,most assuredly, should have required a special resolution. You might want to double check the minutes to confirm that.

I'm trying to piece together what you've said. It sounds like this was not a special resolution in which case, you're right, they've messed up.

Here's the bad news. There's no oversight or governing bodies (industry bodies do NOT count) for any Owners Corporations/Body Corporations and managers in Australia. I know. It's fantastic!

However you do have recourse but it's all on you to take action. First of all you could contact www.clcsa.org.au for some free help since you've spoken to your strata managers and they still don't understand or care about the law (Strata Managers are not qualified professionals in the vast majority of cases so this sort of stuff is ridiculously common). They may be able to help negotiate an outcome without you forking out for representation yourself.

After that it's the magistrates court for you from what I can tell unfortunately. South Australia is the state I have the least experience with strata law and procedures but it looks unsurprisingly familiar in almost every aspect when I look at the specifics that affect you here. The SCA contracts are, again, very familiar. You're doing the right thing seeking advice within SA.

I understand if you don't want to name but I'm always curious who's got the contract as Strata Managers when these disputes arise where there's clearly management incompetence (they're almost, practically, immune to repercussions from individual, ordinary owners so they don't need to care).

Firstly, don't give up if you're in the right. It should be fairly evident as you proceed further. And make sure you're represented at any meetings (Annual or otherwise) in the future. It's so important.

My best advice would be to lobby for self management. It's not THAT hard especially with something like ourbodycorp.com.au (I'm not affiliated in any way though I have had general discussions with them about the industry - sharing our concerns).

 

Many thanks for that!
At the end of the day, yes, they did stuff up. The approved something with 50 percent of the vote, which needed 75% under a special resolution. And this definetly should of come under a special vote. I have been bullied, but am standing my ground. I finally reached the head office in sydney(after the adelaide manager, told me he was not interested in mediation) and have been provided the opportunity to write an email, which will be brought up for discussion at their Friday meeting-usually this costs 250(strata community association complaint form) to put forward a complaint, but they have waived the cost. I will be concise and straight to the point and see how they handle it. How many meetings I went to is neither here or there. This is about a blantant disregard for the strata act which governs the type of voting system which should of taken place.

 

That's not quite right. A special resolution will pass if there are 25%, or less, nay votes of all possible votes. So you would need 3 nay votes cast in your case to stop a special resolution. It sounds similar to requiring 75% in favour but it's not. It makes it easier to pass special resolutions - especially with complacent owners.

As above it's very important that you stay involved exactly for this reason. You don't have to physically attend. There are ways around that and still be represented. If they'd tried to pass this as a special resolution it sounds like it would have passed because you weren't present (if you had 2 other nays since you need 3). In the end their stuff up may benefit you because you should now get a chance to cast a nay vote.

 

Isn't it just a repair?

 

The OP hasn't clarified if it's a new retaining wall or a replacement of a failed wall.

The OC has an 'obligation to maintain' and replacement of an asset meets this requirement.

The issue (reading between the lines) is that replacement of the wall may cost more/needs to be depreciated rather than a repair being an immediate deduction (%) to the OP.

A repair was proposed but a replacement was approved.

 

it was passed as an ordinary vote as listed in the miniutes and agm

 

no it was a complete replacement of about 10 walls

 

It sounds like a repair. The OP mentions "critical" but they waited until the AGM. So how critical was it?

For the entire (boundary?) wall. In that case you'd want a special res to cover it especially since you're at an AGM for a small complex. If they'd done that the OP would have no recourse. Now there may be a special resolution proposed and gets to vote nay. Without 2 other nays it's a waste of time. I'm assuming they have the numbers otherwise there's no point to any of it.

 

So its still maintenance though. As opposed to a new structural change.

 

i think abit of both as the new walls are very different from the original, not only style but actual materials used

 

For an 8 unit complex, I'll say again, you'd definitely want a special resolution for that especially when you're doing it at the AGM! I have to laugh a bit. It's a bit of a comedy of errors. The strata managers should have either gone with straight up maintenance (not recommended given the extent of changes) or proposed a Special Res. They did neither. Why am I not at all surprised?

But as I pointed above, if you don't have 3 nay votes, you're wasting your time. That's the nature of investing in OCs

 

no we have 3 nays, but that really is not my motivation. Its the way 4 people 'hijacked' the situation, using an ordinary vote and pulled out a third funding arrangement which was vastly different of what was listed in the agm. At the end of the day, I will stick to my guns, as I will not be bound by an incorrect voting procedure, unless the law tells me of course!

 

Yeah but what are you going to do about it? Take it to tribunal?

 

That's probably why they tried the ordinary resolution - perhaps expecting a proxy. It sounds like you will get a chance to vote again if they're meeting with you. You have options after that, in any case and, whilst there's no guarantee, it could likely fall your way.

However, it sounds like at least 7 out of the 8 owners care about an outcome here. That's a good reason to work the issue out properly. Unified OCs are the only OCs worth investing in IMO.

If there are grievance/disputes, depending on the state, potential buyers can see that in a given year. That can turn investors away.

 

We have written and tried mediating via email, but they are just ignoring the issue. Hence why we have contacted the head office in sydney. Its been going on for months-they keep threatning us with debt collection(money for walls), funnily enough that is not forthcoming. If head office dont sort this out, then yes we will employ a lawyer to do it for us.