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Apathy - what to do about it?
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prideaux
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15/10/2017 - 11:38 pm
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Newbie to the forum, but i thought this was the most appropriate place to post.

I am trying to help out some pensioner couple living in a small block of 10; They are residents, and seem to be the only one who "cares" about their block / living environment. They are the only ones who turn up to AGM's year in / year out. Other owners could not care less due to any of a) apathy b) don't understand how a schema operates, think the Strata Agent is GOD c) are landlords not living there, as long as the rent is collected d) lower-socio economic status / english not first language e) other reasons.

So the Managing Agent knows this, and does a minimal job just to thick all regulatory boxes, but no real action on the ground; ignores requests for this and that, raises special levies for X, but does not follow through with actioning X, etc

Given the owners don't talk to each other / are not on site / think they are powerless to do anything about it - Can my pensioner couple friends do anything that would lead to replacing the Strata Agent?

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JimmyT
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16/10/2017 - 7:24 pm
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Your friends need to document the action (or inaction) of the strata manager and then raise this issues as a written complaint.

If the situation doesn't improve, they can then take action at the Tribunal under Section 72 (below) to have the strata contract terminated.  The Tribunal will then decide if the strata manager has failed in their duties.

Under the new laws, strata management contracts have a limit of three years before they must be renewed. If your friends are the only ones who attend the AGMs, they have a great opportunity to get rid of the strata manager then, as the SM can't use proxies to vote on their own contract.

 

72 STRATA MANAGING AGENT AND BUILDING MANAGER AGREEMENTS MAY BE TERMINATED OR VARIED BY TRIBUNAL

(1) The Tribunal may, on application by an owners corporation for a strata scheme, make any of the following orders in respect of an agreement for the appointment of a strata managing agent or building manager for the scheme:

(a) an order terminating the agreement,

(b) an order requiring the payment of compensation to a party to the agreement,

(c) an order varying the term, or varying or declaring void any of the conditions, of the agreement,

(d) an order that a party to the agreement take any action or not take any action under the agreement,

(e) an order dismissing the application.

(2) If the Tribunal makes an order terminating the agreement, the Tribunal may also order the strata managing agent or building manager to return to the owners corporation, within the period specified in the order, any documents or other records relating to the strata scheme that are in the possession of the agent or manager.

(3) The Tribunal may make an order under this section on any of the following grounds:

(a) that the strata managing agent or building manager has refused or failed to perform the agreement or has performed it unsatisfactorily,

(b) that charges payable by the owners corporation under the agreement are unfair,

(c) that the strata managing agent has contravened section 58 (2),

(d) that the strata managing agent has failed to disclose commissions or training services (including estimated commissions or value of training services or variations and explanations for variations) in accordance with section 60 or has failed to make the disclosures in good faith,

(e) that the strata managing agent or building manager has failed to disclose an interest under section 71,

(f) that the agreement is, in the circumstances of the case, otherwise harsh, oppressive, unconscionable or unreasonable.

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Arthur Baker
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17/10/2017 - 9:53 am
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Surely if the pensioner couple are the only ones to turn up to an AGM, there wouldn't be a quorum, so they wouldn't be able to conduct any business at all?

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JimmyT
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17/10/2017 - 11:29 am
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Arthur Baker said
Surely if the pensioner couple are the only ones to turn up to an AGM, there wouldn't be a quorum, so they wouldn't be able to conduct any business at all?  

Oh Arthur, mate, you are so-o-o-o last year.

Under the new strata laws (Schedule 1,[17] below), if there is no quorum at the appointed time of a meeting, after 30 minutes have passed provided the chairperson is there, he or she can declare those in attendance either in person or by proxy to be quorate.

17 QUORUM

 (1) Quorum required for motion or election A motion submitted at a meeting must not be considered, and an election must not be held at a meeting, unless there is a quorum present to consider and vote on the motion or on the election.

(2) When quorum exists A quorum is present at a meeting only in the following circumstances:

(a) if not less than one-quarter of the persons entitled to vote on the motion or election are present either personally or by duly appointed proxy,

(b) if not less than one-quarter of the aggregate unit entitlement of the strata scheme is represented by the persons who are present either personally or by duly appointed proxy and who are entitled to vote on the motion or election,

(c) if there are 2 persons who are present either personally or by duly appointed proxy and who are entitled to vote on the motion or election, in a case where there is more than one owner in the strata scheme and the quorum otherwise calculated under this subclause would be less than 2 persons.

(3) A person who has voted, or intends to vote, on a motion or at an election at a meeting by a permitted means other than a vote in person is taken to be present for the purposes of determining whether there is a quorum.

(4) Procedure if no quorum If no quorum is present within the next half-hour after the relevant motion or business arises for consideration at the meeting, the chairperson must:

(a) adjourn the meeting for at least 7 days, or

(b) declare that the persons present either personally or by duly appointed proxy and who are entitled to vote on the motion or election constitute a quorum for considering that motion or business and any subsequent motion or business at the meeting.

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scotlandx
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17/10/2017 - 1:42 pm
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Ok - but what about before the new Act? 🙂

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JimmyT
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17/10/2017 - 2:14 pm
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scotlandx said
Ok - but what about before the new Act? 🙂  

Sorry, Scotty, I'm not with you. 

The new Act is in place so if the two residents want to force the issue, they can

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scotlandx
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17/10/2017 - 5:07 pm
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I was just kidding around, but how did they have a quorum for all those years when no-one turned up but them?

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JimmyT
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17/10/2017 - 5:40 pm
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Just a wild guess, but I bet the strata manager turned up with a sheaf of proxy votes and ran the meeting to suit himself and his cronies.  Another big change from the old days!

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prideaux
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17/10/2017 - 9:18 pm
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Thanks for the replies JimmyT and others. Re the quorum as is typical (was?), the Strata Agent declares no quorum and must wait X days to send out a postponed meeting notice. At this second meeting, no quorum is required, only 1 owner can make all decisions. (I am not sure if physical presence is required, or 1 paper proxy would suffice at this second meeting, perhaps someone knows?).

Another question that has popped into mind, it appears their scheme only has the Strata Agent but no Executive Committee. Is this even allowed for the agent to assume all functions of the Committee (Chairman, Treasurer, etc) without there actually being such a Committee?

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Lady Penelope
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18/10/2017 - 12:05 am
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Yes. One person can hold all three positions in a scheme that has less than 100 Lots. The situation is obviously not ideal, but it is unfortunately sometimes necessary.

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prideaux
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18/10/2017 - 9:34 pm
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@LadyPenelope i was referring to the Strata Manager (obviously a person), not an actual owner, but please confirm whether your answer applies to both cases, person can be the Strata Manager holding all these positions?

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scotlandx
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19/10/2017 - 12:16 pm
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This is how it works:

- the owners must appoint a strata committee - section 29

- if there is no strata committee, the strata manager can exercise any functions conferred on him/her - section 29(4) - refer below, the strata manager can only do that if the agreement provides for it

- the strata committee must appoint officers - the Chair, Secretary and Treasurer - section 41

- a person can be appointed to one or more of the offices of Chair, Secretary and Treasurer - section 41(3)

- the strata manager can exercise the functions of the officers where the agreement with the strata manager provides that the strata manager has and may exercise those functions - section 54(1)

- where the agreement provides that the strata manager can exercise the functions of the officers, the officers can also exercise those functions - section 54(2)

- if a strata manager has been delegated a function by the OC and a breach of the duty by the OC would constitute an offence under the Act, the agent is guilty of an offence under that provision instead of the OC - section 56

Am not sure where Lady Penelope got the 100 owners from, I am going off the NSW legislation?

In your case prideaux I would be asking the following questions:

- at each AGM is there a resolution to determine the number of members of the strata committee and elect the strata committee?

- is there a subsequent resolution for the strata committee to elect office holders? (this would be at a Strata Committee meeting)

- does the agreement with the strata manager provide that the strata manager can exercise the functions of the strata committee/office holders?

- re the strata manager agreement, what is the term of that agreement, when was it last renewed, have there been resolutions to renew it at annual general meetings?

- did the strata manager provide the OC with a revised agreement subsequent to the introduction of the new Act?

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prideaux
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19/10/2017 - 11:17 pm
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@scotlandx, all good questions.

The situation appears to be.

- the paperwork for the AGM's are done, motions are there, but no one turns up. So in effect there is no committee members as no one volunteered (let alone treasurer, secretary, etc). 

But i will try to read previous minutes and see what was documented.

- Does the new Act mandate that a new agreement between the OC and Managing Agent be presented ?

- Can any owner (non exec committee member) request a copy of the agreement?

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scotlandx
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20/10/2017 - 4:59 pm
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If the motions are there ideally you should have it recorded that the OC determined not to have a Committee.

Yes, the effect of the new Act was that a new agreement had to be put in place, that should have been an item on the AGM agenda.

Of course an owner can request a copy of the agreement, effectively they are a party to it.  There's nothing magic about a Committee member.

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