Disclaimer: The information provided below is a general guide only and is not intended as a substitute for legal advice. The company disclaims all responsibility and all liability for any expenses, losses, damages and costs which might be incurred as a result of the information provided by the company in these FAQs.
Is there another way to change the rules drawn up by a developer, without the effort of writing to over 100 owners to gain a prescribed number to agree? It is unlikely we will get a quorum at the AGM.
As mentioned, the power to amend, revoke or create rules may only be exercised by the owners corporation at a general meeting, by passing a special resolution. If the owners corporation is unable to form a quorum, then the general meeting may proceed on the basis that the resolutions passed at the general meeting will be interim resolutions except form motions requiring unanimous or special resolutions. As the requirements of an interim special resolution are different, it is essential that the general meeting obtains a quorum. This can be dealt with both practically and legally as outlined further below.
In a practical sense, the committee may attempt to create greater lot owner engagement by writing to all owners and explaining the importance of the issues being voted upon. The committee may seek to explain that lot owners may participate in the general meeting in person, by proxy or by teleconference and that votes may be cast by ballot, which may be submitted electronically. This may alleviate some of the resistance of lot owners to particulate in the general meeting.
Subject to the limitations in the Act and any special rules of the owners corporation regarding proxies, lot owners who are prepared to attend a general meeting and vote may be given authority to vote on behalf of lot owners who are not able to, or interested in, attending a general meeting and voting.
If a quorum can be achieved, but the motion fails to receive the necessary 75% of votes (or 75% of total lot entitlements), it may still constitute an interim special resolution if 50% of all votes are cast in favour of the motion and not more than 25% of all votes are cast against the motion. If an interim special resolution can be achieved, then the owners corporation must, within 14 days, send notice of the interim special resolution to all lot owners along with the minutes and a statement that the interim special resolution will become a special resolution after 29 days, unless more than 25% of the lot owners petition the secretary against the motion with that 29-day period.
Finally, if all of the above measures do not succeed in creating sufficient lot owner participation to obtain a quorum, then the manager or a lot owner may wish to apply to the Victorian Civil and Administrative Tribunal (VCAT) for an order to resolve the issue created by the lack of quorum. VCAT has the power to make an order it considers to be fair in the circumstances. Accordingly, the committee may wish to obtain legal advice into the prospects of applying to VCAT for the necessary orders to permit the owners corporation to amend the rules, despite the inability to strictly comply with the legislative requirements for a special resolution.
We have a shared bin system in our complex with a very bad odour that attracts flies and maggots. I was told this was my problem as I live on the ground floor. Is there anything I can do?
To ensure the sanitary storage and removal of waste, bin cleaning can be added to the scope of your owners corporation’s cleaner or other site contractor, if it is not already. If you’re not on your strata committee, speak to your strata manager, and ask him/her to raise the issue with members. You can also adopt a model by-law from Schedule 3 of the Strata Schemes Management Regulation 2016, which applies to the disposal of waste for shared bins. Alternatively, speak to your council about increasing the regularity of garbage pick-ups.
Cigarette smoke is drifting into my apartment from the balcony above. I have approached the owners but they refuse to stop. What can I do under the strata law?
There are a number of options regarding the banning of smoke penetrating any other lot or common property in your building. If you have a by-law or model rule in place, you will be able to enforce it with the relevant notice to comply. If you don’t have a by-law or model rule in place, you can still apply for mediation/conciliation through the relevant state consumer authority or apply to the Tribunal for assistance. For NSW, more information on this topic can be found under the Nuisance section of the Act 5.153 (1): see note about smoke penetration.
Someone in my building is making a lot of noise at night. What can I do?
You should always try to resolve the problem yourself first. However, if you don’t notice any change, or feel intimidated, you can escalate the issue two ways: 1. Ask your owners corporation/body corporate to issue them with the relevant notice to comply, then seek a fine if they continue to make noise; or, 2. Apply for mediation/conciliation through Fair Trading in NSW, Body Corporate and Community Management in Queensland, or Consumer Affairs in Victoria.