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  • #8574
    AvatarCT55
    Flatchatter

    I live in a block of 64 units built in the 1970’s so maintenance of the building is an ongoing issue.  We have recently completed replacing the tiles and balustrades on all the balconies.  Nine months later, and not without its problems, the EC are feeling relieved to have this work competed as it required a huge amount of time and effort.  During the works being carried out, the idea of appointing a building manager was mooted (by me).  The reason for this being that one of our EC members works as a professional building manager for a large commercial strata building in the city and a lot of the time he was left to sort out problems with the contractors as none of the other members, including myself, felt we had the necessary skills and knowledge to do so.  I felt this was unfair but unavoidable.  I feel he carried an extra load simply because of his experience and knowledge.

    He is now retiring and has expressed an interest in taking on the role of Building Manager part-time if the role was created.  At our request he has given us a proposal listing duties, working hours, rates of pay etc.  Can anyone see a conflict of interest with this person being on the EC?  He is also our treasurer and does a terrific job.  What sort of things should we look out for in having a building manager appointed?  I see from previous posts that we would need to look at the roles of our Strata Manager and the Building Manager.   I would welcome any advice on this.

    Thanks.

Viewing 15 replies - 1 through 15 (of 17 total)
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  • #25201

    Thanks Whale for your advice. The motion did go ahead…as often happens the meeting was stacked with proxies and people who appear not to understand strata living and obligations. After i explained the act and the ramifications …the comment was oh, more legal fees, bring it on!

    appreciate your swift assistance thanks so much

    #25194
    AvatarWhale
    Flatchatter

    JS – I hope you read this before tonight’s AGM.

    Sect 40A states that a caretaker or building manager is a person who is ENTITLED to exclusive possession of a lot or common property.

    The fact that a person chooses not to avail themselves of that entitlement doesn’t alter that fact that if they perform any or all of duties prescribed, namely managing common property, controlling the use of common property by persons other than the owners and occupiers of lots, and maintaining and repairing common property…… then they’re caretakers, building managers, resident managers or known by any other title, where Sect 40A applies AND under Sect. 40B they can only be appointed by and/or have their Agreement terminated and/or transferred to another person by way of a resolution at a general meeting of he owners corporation.

    You should advise the Chairperson of your general meeting that if the motion to extend the current, illegally determined “contract” of the person now undertaking the duties of caretaker, building manager, or whatever is put to the vote and passed, then you will be seeking orders in the NSW Civil & Administrative Tribunal to have that resolution invalidated under Sect 153 of the Act.

    #25193

    I have just been advised by the SM  that  as the caretaker (building manager) doesn’t have a office on site  (40a) then the EC can appoint him

    If he has an office onsite then (40B) applies ?

    Can this be true?

    AGM tonight

    #25190
    Sir HumphreySir Humphrey
    Strataguru

    To me it sounds like the original appointment might not have been entirely kosher. However, if the OC at a general meeting resolves to extend the contract, then that, in itself, would seem to retrospectively make proper the earlier improper appointment. 

    More generally, something, whatever it might be, might have been the right thing to do but was not done properly at some time. A later meeting could fix the problem by making the same decision by the proper process. Our OC had an example of the EC making a decision many years earlier that was not within its power to make. Once we had legal advice that made us aware of this problem, the legal advice on a remedy was to have a general meeting of the OC remake the decision on the same terms by the correct process. 

    I would not worry about the past. If the GM resolves to extend the contract, then I would regard that as a suitable remedy for past error. 

    #25189

    Im sorry but still confused…. are you saying that the motion to extend the current BM that was not approved at a general meeting is valid or not?

    it was the EC who appointed this Company not the OC at a GM.

    my point is that the OC did not approve this expenditure or contract therefore extending a contract is surely not valid? How can OC extend a contract that was never approved? 

    Is your comment saying we have to accept this current one but next time it has to be approved st a GM

    thanks and apologise for my confusion 

    #25188
    Jimmy-TJimmy-T
    Keymaster

    @justsaying said:
    Our AGM notice has a motion ” to extend the BM agreement for two years. ” as this appointment was not approved at a GM surely this motion is invalid.

    Would you be kind enough to state the exact wording/ section of the act re agreement as i cant find it.
      

    There are three things you need to consider:

    1. The EC can act on behalf of the Owners Corporation and make decisions EXCEPT where those decisions were originally made at a general meeting.

    2.  A General Meeting is superior to an EC meeting and therefore decisions can be made at a general meeting that supersede those made at an EC meeting.

    3. Because of the above, any future appointment of a building manager must be made at a general meeting.

    Apart fro m that, section 80B of the Act requires large strata schemes (more than 100 lots) to get two quotes for any expenditure over a figure set by the strata regulations (4.14) at $30,000. If your scheme is smaller than 100 lots, you don’t need to get two quotes (but there’s no harm in doing so).

    #25187

    I regret to report ive taken my eye of the ball recently. Our AGM notice has a motion ” to extend the BM agreement for two years. ” as this appointment was not approved at a GM surely this motion is invalid, and we need to go back to obtainging tenders and the EGM to approve this? 

    Would you be kind enough to state the exact wording/ section of the act re agreement as i cant find it.

    thanks very much 

    #23755
    Jimmy-TJimmy-T
    Keymaster

    If your new EC members really are interested in learning more, point them in the direction of the SCA executive committee online training program HERE.

    #23751

    Whale, I brought up the appointment during the motion of budget approval at the AGM.. Expenditure without approval please explain.. I also asked for EC to ratify the appointment and expected they would have it as a motion on the AGM. Difficult when the EC refuse to answer correspondence. Too late when the notice arrives .

     

    The previous BM vanished. I arrived home one day to see mr clipboard onsite. The appointment was never minuted. There are some problems with the new BM .. Increased hours,  double the expenditure we approved initially, controlling attitude, commencement work hours (0600)outside of the law… Nothing that can’t be fixed though.

    the strata manager was quite dismissive of any comments particularly at the GM.. Virtually instructed owners ( newbies mostly) on how to vote.. ” my recommendation is… Etc etc… 

    I did write to the strata manager several times regarding the number of irregularities.. Including sealing of a number of pool gates. Great to come home and think you had lost your mind.. ” why can I open the gate? ” lol. 

    yes, I’m mindful of the consequences Jimmy. The good news is we removed the three office bearers. I’ve met with the new EC now and they understand in moving forward and restoring good will another GM needs to occur and I feel encouraged that they are keen for available  education  sessions so this travesty will not continue.

    We will also get another legal firm ! 

    cant thank flatchatforum enough!

    #23748
    Jimmy-TJimmy-T
    Keymaster

    I have a feeling this may fall under Section 138 (see below) regarding the failure of an Owners Corporation to fulfil its duties under the Act.

    If you think there is a serious problem with this appointment, you could write to the EC and demand that they hold an EGM to ratify the appointment (or otherwise).  You should warn them that failure to do so withing two months will lead to you taking action against the OC under section 138.

    Having said that, if you don’t have any issues with the person or company appointed, then be careful of being branded a serial nuisance which will doubtless be used against you when there is serious problem that really does need to be addressed.

    138   General power of Adjudicator to make orders to settle disputes or rectify complaints

    (1)  An Adjudicator may make an order to settle a dispute or complaint about:

    (a)  an exercise of, or a failure to exercise, a function conferred or imposed by or under this Act or the by-laws in relation to a strata scheme, or

    (b)  the operation, administration or management of a strata scheme under this Act.

    (2)  For the purposes of subsection (1), an owners corporation or building management committee is taken to have failed to exercise a function if:

    (a)  it decides not to exercise the function, or

    (b)  application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.

    #23747
    AvatarWhale
    Flatchatter

    just – based upon your previous posts I’m concluding that a new building manager has been appointed (i.e. to replace a previous one), and that’s been done without an enabling resolution of the Owners Corporation at the recent Annual General Meeting (AGM).

    It’s too late now, but a Motion submitted by you for the Agenda of that recent AGM would have been a better means to raise and discuss the matter than was correspondence to the Executive Committee Meeting that you say was ignored.

    I’m a little confused by the Strata Manager’s reported comment that “their firm would never permit this to occur” – where if I assume “this” is a reference to the new appointment and to the resultant increase in expenditure, then you may have an ally there (?).

    Anyway back to your question, as there was no resolution taken at the AGM you can’t seek Orders to invalidate it, so your only course of action in my opinion is to apply for Mediation of the dispute involving the new appointment etc by the NSW Dept. of Fair Trading and depending upon how that goes, proceed to Adjudication in the NSW Civil & Administrative Tribunal (NCAT).

    A final query…. what if anything did the original Building Manager have to say about the termination or transfer of their Agreement?

    #23745

    More advice please! The appointment of BM was not approved by general resolution. I wrote to EC, who refused to acknowledge it or raise my correspondence at a ECM. At the recent AGM I questioned this appointment and the  increased expenditure. I was advised by the strata manager that their firm would never permit this to occur.  I had the minutes of past AGM and the current one with no motion for BM on it. The ECM just sat mutely. Owners were then told we couldn’t discuss the budget item as ” it will take all night”! 

    So what are the next steps I need to take please? 6

    #23287

    Thanks Whale for your advice always clear and concise. Thats exactly my reading and it amongst a number of other discrepancies will be taken to the next AGM!

    #23283
    AvatarWhale
    Flatchatter

    On the assumption that the person you’re referring to is not just a cooperative a Member of the Executive Committee, and that they act as a letting agent for the Plan and/or maintain the Common Property and/or supervise tradespeople who’ve been sent to the Property by the Strata Manager or by the Executive Committee, then they are indeed classified as a Building Manager or Caretaker who must be appointed by a Motion passed at a General Meeting (simply majority vote) under the specific terms of a formal written Agreement with the Owners Corporation.

    The transfer of an Agreement, even in identical terms, to another person or company must also be by way of a Motion passed by way of a simple majority vote at a General Meeting of the Owners Corporation, as must the termination of an Agreement, but only in strict accordance the terms provided in it.

    So NO, the appointment of your new Building Manager or Caretaker by the means that you describe was not handled correctly and any Agreement would be therefore void!

    #23276

    regarding the appointment of a  new building manager I am familiar with tenders being sort and owners approval at a general meeting. Recently a AGM was held with no agenda item to replace the current building manager. One month later a new building manager appeared with increased hours and obviously at an increased rate.

    Is this correct procedure? Advice appreciated thanks

Viewing 15 replies - 1 through 15 (of 17 total)
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