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Executive Committee Chair's misleading advice?
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Tiaeki
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04/03/2018 - 3:47 pm
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Recently I wrote to the my Executive Committee about airbnb in our apartment building. Our special by-law reads:

The owner, occupier or lessees of a lot must not carry on, engage in, operate, permit or suffer to permit an activity, business, development, enterprise, trade or undertaking of or associated bed and breakfast accommodation, a boarding house, a backpackers hostel, a motel or hotel, a tourist facility or short term holiday or student accommodation, on a lot or on common property.

 
The Chair of the Executive Committee replied:
As the rest of the committee is well aware, the bylaw you quote is invalid. Just give fair trade a call on their 13 number. They’ll explain it all to you. I’m the chair of the committee and it is great to keep things nice and compliant. Invalid bylaws can’t be enforced. 
 
The Chair also happens to be the airbnb host. Is the special by-law invalid? Can the by-law be enforced? On the face of it she is in breach of the by-law and, if so, can she still remain Chair? Any advice would be welcomed.
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JimmyT
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05/03/2018 - 1:53 am
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Fair Trading neither creates strata law nor enforces it. This is not Fair Trading’s role and they shouldn’t be issuing statements like that.

They can express an opinion but they often get things wrong and there are plenty of lawyers who would say your by-law is valid, especially in view of the recent WA Appeals Court and Privy council rulings.

The only real way to test the by-law is to get the committee to issue a notice to comply then apply for a fine if she does it again.  If she refuses to pay the fine and challenges the by-law, the Tribunal will decide if it is valid. 

The recent case in Woollahra was more about a badly written by-law than any such by-law being invalid.

As she is in dispute with the Owners Corp, it would be reasonable for the committee to declare the position of chair vacant and elect a new member of the committee to the role.  It’s a simple as that.

Failing that, you can (after mediation) apply to NCAT for orders to remove her as chair or from the committee completely.

The disgraceful thing here is that the chairwoman knows the majority of owners don’t want airbnb but she doesn’t care.  There are plenty of buildings with by-laws just like yours that are effectively keeping airbnb at bay.

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Tiaeki
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15/03/2018 - 6:21 pm
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Thanks Jimmy – here’s an update. The Chair/Airbnb businesswoman is now trying to discredit the Secretary and has in an email to the Executive Committee accused the Secretary of the following

  1. that the Secretary spat in her face.
  2. that the Secretary’s behaviour is causing great distress to several residents.
  3. that the Secretary is intimidating and harassing others on a daily basis.
  4. that the Secretary’s behaviour is inappropriate and unwelcome.
  5. that the Secretary is operating well out of the ‘restrictions’ of her role.

In addition to this, the Chair/Airbnb businesswoman has damaged the Strata noticeboard by drilling out the lock barrel so that she could remove the copy of the by-laws. 

Know any good lawyers?

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JimmyT
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15/03/2018 - 8:54 pm
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I don’t think you need a lawyer for this. A locksmith, perhaps. 

The chair has given you evidence in writing and by her actions of her inability or unwillingness to do her job as defined by section 37 of the Act (below) as well as her disdain for decent behaviour in her determination to further her and only her interests.

Ask your committee to remove her as chair and if she continues to act up, either call a general meeting or apply to NCAT to have her removed from the committee.

If the rest of the committee refuses to support you, apply for mediation then orders at NCAT under section 238 to get orders to have the chair and her cronies removed.

 37 DUTY OF MEMBERS OF STRATA COMMITTE

It is the duty of each member of a strata committee of an owners corporation to carry out his or her functions for the benefit, so far as practicable, of the owners corporation and with due care and diligence.

238 ORDERS RELATING TO STRATA COMMITTEE AND OFFICERS

 

(1) The Tribunal may, on its own motion or on application by an interested person, make any of the following orders:
(a) an order removing a person from a strata committee,
(b) an order prohibiting a strata committee from determining a specified matter and requiring the matter to be determined by resolution of the owners corporation,
(c) an order removing one or more of the officers of an owners corporation from office and from the strata committee.

(2) Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has:
(a) failed to comply with this Act or the regulations or the by-laws of the strata scheme, or
(b) failed to exercise due care and diligence, or engaged in serious misconduct, while holding the office.

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