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Can/should an OC be involved in neighbourhood issues?
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Sir Humphrey
Canberra
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12/09/2017 - 10:10 pm
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Austman said
...I'm sorry to harp on the matter but one of my committee members wants the committee to contact the council as the legal representative of all the owners about some matters where opinions are likely to vary. I don't think that's right at all.  

[I agree with JT asking what you mean by 'legal representative'.]

It really comes down to whether the majority of the committee is confident this particular opinion is widely held by the owners generally. That is for them to satisfy themselves about. You disagree, so argue your case. Conduct a straw poll of the next 10 people you see rather than both sides speculating about how widespread a particular opinion is. 

Even if the committee actually has hard evidence that opinions vary, they might still be able to honestly and reasonably represent a view that "Many, though admittedly not all, of our owners are concerned about X because of Y". In my opinion, owners' opinions do not need to be unanimous before the committee could act.

The committee just needs to qualify its statements honestly and appropriately in what is written or in what an appointed representative is asked or authorised to say:

  • "Some of our owners have asked us to pass on their concern that..." or
  • "Many of our owners are concerned..." or
  • "Almost all our owners..." or
  • "A recent general meeting resolved that..." or
  • "Our committee members are concerned about ... and we intend to draw this and your response to the attention of our owners".

There are many ways to avoid overstating or misrepresenting what is being represented when making representations to some authority!

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Austman
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13/09/2017 - 5:57 pm
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 As stated, I'm not against OCs getting involved in neighbourhood or community issues per se, although I can't see where it's part of their functions in OC Acts. What I'm concerned about is OC committees that claim to represent all the owners in the OC doing that without even consulting the owners. That's what I mean by the "as the legal representative" of the OC  - which committees are.

I've looked though the legislations in VIC, NSW and ACT. I can't find anything that supports such committee actions. And, as others have pointed out, the issues might even concern moral values.

As for the argument that just because the legislation doesn't mention it, doesn't mean it's not allowed: at least there are some legal opinions on that. And so far, the ones I've found are not very supportive of that view. An example:

committee members liability

What should strata committee members do? Some suggestions:

Always check that actions being taken are authorised for a strata committee under the SMA or other relevant Act. If in doubt as to whether a resolution of the owners corporation is required, obtain it.

The legal opinion above also suggests that if a committee acts beyond its authority, it might even void office bearer liability insurance!

IMO if there was committee decision to write a letter on a neighbourhood or community issue to council viz:

On behalf of the 24 owners in strata plan 123, the Owners Corporation Committee requests the council to ... 

That will be beyond a committee's authority unless the OC has approved it. But that's what's being proposed. I'm not going to support that.

As a side note on checks and balances. In VIC, notifications and minutes of committee meetings need only be sent to committee members (not to owners) and there is no requirement for a notice board. Owners in VIC can be quite unaware of a committee's activities unless they specifically ask or check the OC's records.

It's not how I behave as an OC chair in VIC. I insist on sending out committee agendas and minutes to all the owners, but it is the way other OCs in VIC (where in those I am an owner only) behave.

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Faraway girl
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14/09/2017 - 7:44 pm
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It can be very frustrating to read about residents in a Strata Scheme who don't want to be on the Strata Committee, don't usually attend meetings of either the Strata Committee ( to observe some of the issues they deal with) or the Owners Corporation ( when they see the Agenda and do not have an interest in the motions ) but then make a big issue if that same Strata Committee makes a decision that they don't agree with. Suddenly the issues of the Strata Committee should be an issue for the Owners Corporation.   No.  You can't elect a Committee and expect them to do all the work, and then when you don't like what they decide, suddenly decide that that particular issue must go to the Owners Corporation.

So in my humble opinion you can't have it both ways . Either leave the Strata Committee to act on behalf of all owners and that means that sometimes you may not agree with their decisions but accept that they had the right to make them, or stand for election to the Strata Committee and influence what issues they should deal with and what issues you can propose should be taken to the Owners Corporation. 

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Austman
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29/09/2017 - 3:35 pm
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JimmyT said

I am getting a bit weary of this "legal right" argument. Do I have the legal right to express an opinion in public? Yes, I think I do. Is my "freedom of speech" defined in Australian law? No, I don't think it is. By your logic, that means I don't have the legal right to express an opinion

I hope I've explained it.   Everyone has a right to express an opinion and make a noise about community issues they are concerned about. Absolutely.

But when a 3 or 5 member strata committee claims to represent 10 or 50 or 200 or more owners on those same community issues?  That's the question.   Within the OC Act, a strata committee actually does represent all those 10 or 50 or 200 or more owners if all the allowed functions and powers of the the OC have been delegated to it.  And that has been done at every AGM I've attended in the past 37 years.  But beyond those functions and powers?

Sir Humphrey said

And then Part 3 and elsewhere in the Act provides more detail. I would argue that s.16(1)(c) covers comment on development proposals in the neighbourhood.

I think you might be over interpreting S.16(1)(c)?  That function exists in Victoria too.  I think it means the other laws have to specifically give that power to an OC.

As it turns out, at our committee meeting I stated my concern that the issues might be outside an OC's functions as stated in the OC Act.  And if so they'd be outside an OC committee's functions too.  The other committee members agreed and will approach council as a group of concerned rate payers.  The issue and decision was put into the committee meeting minutes and sent to all owners (and even to tenants that have given me their email address).  They can get involved too as they wish!

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Sir Humphrey
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29/09/2017 - 6:46 pm
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Austman said

Sir Humphrey said

And then Part 3 and elsewhere in the Act provides more detail. I would argue that s.16(1)(c) covers comment on development proposals in the neighbourhood.

I think you might be over interpreting S.16(1)(c)?  That function exists in Victoria too.  I think it means the other laws have to specifically give that power to an OC...

As I suggested elsewhere above, let's forget about pedantic interpretations. However, if you insist: The EC exercises the functions of the OC. The OC is a 'legal personality'. Legal persons can have opinions and state them. The EC can say what it likes to whoever it likes on behalf of the OC - so long as it is careful to not overstate things.

If there is an OC resolution to (say) condemn some proposal, it can state very strongly that the OC objects.

If it is just plain obvious that some proposal would have some effect, the EC can and should say so on behalf of the OC, even if it would not warrant calling a general meeting or conducting a survey.

The EC should say what it believes to be defensible and true. If that is "Many of our residents are concerned that...", then that is what it can say, no more, no less, perhaps on the basis of just talking informally to a fair sampling of residents and finding most concerned. If it is only that "The members of the committee of Units Plan XYZ are concerned that..." then that could also be a fair, true and honest statement to make, even if the committee has not spoken to anyone else. 

Looking for a specific legal power seems like excessive pedantry to me so long as the committee is being honest, not overstating the situation, and acting defensibly in the interests of the OC. 

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dech
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04/10/2017 - 6:19 pm
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Back when I thought the rule of law had a significant role in my Strata block I recall understanding that no expenditure could be approved involving considerations outside the block (which include things which common sense would suggest effect all owners). 

    In extremis for example if 8/10 unit holders felt strongly about the general need for a change in government and wished to approve expenditure of most of the retained funds as a donation it could not be sanctioned.  For the Strata Mgr. to make one 45c call (plus $30.00 charges) to the local council about nearby potholes is essentially the same in principal.  If three of those ten owners could find the wherewithal to contact the council at their own expense it would likely be more effective.

    The 8/10 wanting a change in govt. may passionately believe that some issue such as going to war with Japan over whaling is more important than potholes and will allow them to sleep easier than stopping the rattling trucks hitting the holes.   The more likely contentious areas are somewhere in between i.e. hiring a solicitor at significant expense to threaten legal action against a neighbouring business which generates noise/smells affecting a percentage of Owners.

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