The WA Strata Magazine | July 2021

The WA Strata Magazine

Can lot owners attend Council of Owner meetings?

Page 8 | Strata Alliance

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July 2021 // ISSUE 6 1

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The 28 Day Voting Period With the 28 day voting Q process, if all members had voted pre and at the meeting, does the voting period closes at the end of the meeting?

In the case whereby all proprietors have cast their vote and it has been recorded as such, then it would be my opinion that the motion is deemed to be carried at the meeting and the allowance of a further 28 days may not be applicable.

The WA legislation talks about a 28 day voting period. With the 28 day voting process, if all members had voted pre and at the meeting, does the voting period closes at the end of the meeting?

However, there is no provision in the Strata Titles Act specifically referring to a situation like this, so it is open to interpretation by the wording of the legislation. Given the wording (shown on the article **here**) under Section 121’s intention as it appears is to have the 28 days period solely for the purpose of proprietors not in attendance to cast a vote, one may reasonably conclude that since all votes have been cast the 28 days is no longer required/applicable to deem the motion as carried. This is up to legal interpretation and possibly depends upon what type of motion is being passed, i.e. termination motion or re subdivision motion, or is it just a simple bylaw change or structural application etc? So, it may depend on what section of the Strata Titles Act WA and Regulations WA the motion that’s being sought is governed by. Proper legal opinions should be obtained based on the nature of business being sought to be passed by the strata company would be my advice on how to proceed in events such as this.

If, however, not all votes were received but the resolution still passes at the meeting due to the required numbers, are the subsequent votes invalid and recorded although they could not change the resolution?

If all proprietors have cast A their vote, that motion is deemed to be carried at the meeting and the allowance of a further 28 days may not be applicable.

Regarding a Resolution without Dissent, Special or Unanimous Resolutions being a resolution on which every person in the scheme who is entitled to vote is to vote either in person, by proxy or in writing within 28 days after the meeting, generally the process is that the motion stays open as such for voting proceeding the meeting date for a period of 28 days before the motion is effectively “carried”.

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Kylie Nelson | KN Strata Consultancy kylie@knstrata.com

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Resolution Without Dissent

How does voting work?

What are the voting rules for a Resolution Without Dissent? How do we count the votes?

What are the voting rules for a Resolution Without Dissent? How do we count the votes?

Section 1230 (2)(b) Resolutions states in order for a resolution to be successful, “a resolution of a strata company is a resolution without dissent if — (b) no vote attached to a lot is cast against the resolution” (assuming the notice period requirement has been met).

Our strata council is proposing a resolution to add 2 new Governance by-laws and we are using the method of ‘voting outside of a general meeting’ allowed under Section 120 (3) (b) Voting. Our strata scheme has 15 owners, each with one unit/lot.

When we get the ballot papers back, if the count is as follows: 13 in favour and 2 blank ballot papers, how do we treat these blank forms? Are these abstention votes or accepted but neutral? Would the resolution be passed because no vote was cast against it?

Also, if one owner chooses not to submit voting papers, is this acceptable. Do all owners need to vote on a Resolution Without Dissent?

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One no vote and the resolution is defeated.

The simplest explanation to this when voting for Resolution without Dissent you assume all owners will agree, but it Is not the yes vote that has the impact. In a Resolution without Dissent, the NO vote rules supreme. One no vote and the resolution is defeated.

In your hypothetical with a complex of 15 lots, you receive 13 yes votes and 2 returned blank ballot papers. In my opinion, if they don’t have a yes or a no or abstaining on them, they’re informal ballot papers and do contribute to the vote. In this case the RWD would pass as there is not a recorded no vote.

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Brian Rulyancich | StrataTAC strata@stratatac.com.au

Finally, all owners do not have to vote with a Resolution Without Dissent (RWD). Silly if they don’t, but there is no statutory requirement that they have to. With a RWD the vote that has the impact is the no vote. One, and only one, negative vote and the motion is lost.

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Can lot owners attend Council of Owner meetings?

Q

Can lot owners attend Council of Owner meetings?

The WA Strata Titles Act amended 1 May 2020 does not address whether any lot owner can attend a meeting of the Council of Owners.

Does the absence of any mention, and in particular the absence of any restriction of lot owner attendance at Council of Owners meetings, mean that lot owners are entitled to the meetings of the Council of Owners?

The Act is absent in A relation to the attendance by lot owners except in cases where they are appointed as a proxy by one of the council members.

The legislation provides the Council of Owners the ability to conduct business, adjourn and otherwise regulate their meetings as they think fit, with the provision of convening a meeting with 7 days notice upon request from a member. The Act is absent in relation to the attendance by other lot proprietors except in cases where they are appointed as a proxy by one of the council members.

Owners are not entitled to attend Council of Owners meetings as the Councillors are able to conduct business as they think fit.

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Councils may invite other owners to meetings if they wish to have additional input/assistance or expertise on certain matters. If an owner were wanting to attend a specific meeting to present an issue then they can apply to the council to be invited to the meeting.

The Council of Owners is a voluntary role and in some circumstances may be onerous. For this reason, many councils set time limits or other parameters for their meetings and these should be respected. All owners have the ability to nominate to the Council at the AGM, or offer their services to the council members for those occasions when additional help is required.

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Shelley Fitzgerald | Strata Alliance info@strataalliance.com.au

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Replacing a defective fob Who pays?

My fob has stopped working. The Strata Company want me to pay for a new fob.

Isn’t this a defect?

My key fob has stopped working on the door from my car park to the apartment building. It works on the main entrance and lower level car park doors.

The strata company suggests it has lost its programming and wants me to pay for a new fob. As the Fob is not lost or damaged given it works on other doors why should I pay for a new fob? Isn’t this a defect?

Luke Downie | Realmark ldownie@realmark.com.au

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It would not be unreasonable for the Strata Company to suggest a new device is purchased.

The coding / programming for different doors or gates may be different and it is possible that your remote is defective even if it still operates on other access points. It would not be unreasonable for the Strata Company to suggest a new device is purchased, especially if the device has been in use for some time. My experience is once a fob loses some or all of its programming then the most cost effective solution is usually replacement.

If however the device is relatively new it may still be under warranty. It is worth checking with the Strata Company or the Strata Company manager to see if there is any warranty on the device or its a programming issue.

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Termination of the Scheme

There is interest in Q selling our Perth strata complex to a developer, but there are 8 unit owners who stubbornly say they will never sell. Are there new Strata rules that allow for termination of schemes by a majority vote?

I am the owner of a Perth unit in a complex of 27 units. The whole complex is more than 50 years old and showing signs of ageing.

At Strata meetings, there is interest in selling the whole complex to a developer, but there are 8 unit owners who stubbornly say they will never sell. Can we force the issue?

I was told the new Strata rules allow for termination of schemes by a majority vote.

What is the legal position for termination of schemes?

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A

Part 12 of the Act is quite detailed and fairly onerous.

Firstly, it’s always important to point out that section 91 (1) the general duties of the strata company require that they must keep in good service and repair, properly maintain and if necessary, renew and replace the common property. So there is a positive obligation for schemes to maintain their buildings.

By the sounds of it, this complex is now starting to show signs of its age and depending on where it’s located you may see that the underlying land value exceeds the gross realisation of the units.

The new legislation did introduce termination of schemes, Part 12 of the Act: Termination of strata titles scheme. It is quite detailed and fairly onerous. But it’s not a majority vote, it’s actually an 80% requirement that owners vote in favour. If there is 27 units, they need 22 units to vote in favour of the termination of the scheme.

If there is a suggestion that there are eight units that stubbornly refuse not to sell, it would be very challenging for them to be able to achieve an outcome that sees the scheme terminated.

Ultimately, I think they need to get their 10 year maintenance plan undertaken, and look to get ahead of some of those maintenance issues that seemed to be a concern now. If you get a 10 year maintenance plan drawn up, it will draw the attention to how much money you’re needing to put into the reserve fund over the next five plus years.

It’s certainly a big debate with some of our older schemes that we’re seeing right now.

Particularly in the western suburbs were you have such a high land value. We are having these discussions with our owners on a very regular basis about what their strategic plan should be going forward, particularly when they do get a 10 year maintenance plan and there might only be eight lots and yet you’ve got concrete cancer, and you’ve got subsidence and some of these very expensive maintenance issues that need to be addressed.

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Scott Bellerby | B Strata

scott.bellerby@bstratawa.com.au

Owners are now starting to question ‘Do we want to have to keep contributing $100,000 a year and a reserve fund for such a small scheme? Or do we now have to think about realising the underlying land value and potentially terminating the scheme and and moving on?’

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Short Term Letting Loss of

Rent Insurance Claim

If a lot owner who conducts short term letting in his unit has a loss of rent insurance claim, should that be paid at the market rent value or the short term rental rate?

A lot owner who conducted short term letting in his unit was seeking a loss of rent insurance claim. The insurer only paid out at a market rent value rather than the short term rental rate. Of course, this amount was considerably lower than the short term rate.

Is the insurance company responsible for compensation at the the short term rental rate?

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Short term letting really differs from policy to policy.

Short term letting really differs from policy to policy. There are some insurers who require you to have a rental agreement in place.

Now, obviously, that’s not possible.

You really need to get advice specific to what the coverage is under the policy.

If you’re not being treated fairly in a claim, a good broker would put your case forward for you and fight the issue.

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Tyrone Shandiman | Strata Insurance Solutions tshandiman@iaa.net.au

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Can we charge a real estate agent a fee to access documents?

Under section 107 of the Act, can I charge a Q WA real estate agent fees to access documents such as council of owner information, AGM meeting minutes, financial statements, etc?

When a real estate agent, not a settlement agent, requests information for a potential buyer even before an offer is submitted, can I bill the real estate agent for fees under section 107 as if they are receiving certificates like in section 110(1) or 110(2)?

They are looking to access information such as the last AGM meeting minutes, or more than one previous AGM minutes, financial statements, reasonable estimates of the number of contributions likely to be payable for the 12 months after settlement, any exclusive bylaws etc. I feel these fees would be justified as a fair amount of time is required to retrieve and supply this information.

A

The Strata Company records are available to any lot proprietor upon request.

I am making the assumption that you are the Volunteer Strata Manager for a Strata Scheme making this enquiry.

The request for the information that your email refers to is further answered by the details in the Strata Titles General Regulations 2019 (STGR) the other piece of legislation that governs strata ownership.

See STGR Reg 86.

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86. Fees for applications under s. 107 1. For the purposes of section 107(4), the following amounts are fixed as the maximum fee for an application under section 107 — a. in the case of an application for information under section 108 — $10; b. in the case of an application for inspection of material under section 109 i. if the application is by a person who has a proper interest in information about a strata titles scheme — $1; or ii. if the application is by a person authorised in writing by the person referred to in subparagraph (i)— $100; c. in the case of an application for a certificate under section 110 specifying the matters referred to in section 110(1) — $140; d. in the case of an application for a certificate under section 110 specifying the matters referred to in section 110(2) — $140.

3. A maximum fee under this regulation is increased by 10% if the strata company is required to remit GST for the provision of the service for which the fee is payable.

Be careful with the interpretation of “a person who has a proper interest” in Reg 86(1)(b)(i), this is an owner within the strata scheme.

As opposed to “a person authorised in writing” by an owner within the strata scheme.

So, Settlement Agents and Real Estate Agents or any other person who has been authorised in writing by an owner may request the information specified in EITHER of the two certificates that may be requested. Noting that there is a fee payable for each Certificate even if they don’t request all the details that each Certificate has to offer.

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Shane White | Strata Title Consult shane.white@stratatitleconsult.com.au

2. An application under section 107 is not duly made to a strata company until the fee (if any) charged by the strata company for the application has been paid.

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Who is responsible for the maintenance and repairs of balconies?

Who is responsible for Q the maintenance and repairs of balconies?

We are preparing our next 10 year Maintenance Schedule and we need to know if balconies will be included in the report.

How can we tell who is responsible for the maintenance and repairs of balconies? I have read somewhere that even if a balcony is classed as exclusive use, the strata are still responsible for its repairs.

It is my belief that it is in fact strata responsibility.

I need to confirm this as we are preparing our next 10 year Maintenance Schedule, and the balconies will all be inspected and included in the report. However, we need to determine whether the costs go into the strata budget in the relevant year, or are wholly, or partly the responsibility of the owners.

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A

Legally, the maintenance and repair of balconies will be maintained as dictated by the Strata Plan.

Who is responsible for the maintenance and repairs of balconies?

As with most things strata, there is a legal opinion and a practical opinion – sometimes the two come together! Legally, the maintenance and repair of balconies will be maintained as dictated by the Strata Plan. In most cases, the finish of a balcony is to be maintained by the Strata Company as it was at the time of the creation of the strata.

In a practical sense, though, what happens if you are having a BBQ and one of your guests drops a bottle of bubbly and a tile is broken beyond repair and you want it fixed now… who judges when is a suitable time for the repairs? We see that all Owners need to take a deep breath and project themselves forward in time to gain a bit of perspective over who is responsible and when is it to be done. Over time there will be an accumulation of funds to carry out eventual replacement of all the tiles on the balcony – let’s say the maintenance plan budgets on replacement of balcony in 25 years.

If an Owner in year 10 of the maintenance plan has a desire to have the balcony refurbished (after 20 bottles of bubbly have dropped!), then the approach of the COO should be that if the Owners contribute 10 years of contributions, the owner can contribute the remaining 15 years of contributions to speed up the process. The process of maintenance would still have to be administered by the COO, to maintain control over the finished colour, noise attenuation, balcony safety etc, but we see a 10-year plan as a living, breathing document to be used regularly – not just as a compliance box to be ticked.

Are COO’s opening themselves up to liability by preparing their own 10-year maintenance plans?

Should COOs be preparing their own 10 yr maintenance plan? The designated strata company is the entity responsible for issuing

a 10-year maintenance plan for a particular complex. We see the opportunity for liability for the COO is both in a. Not taking expert advice when preparing the plan, and b. Not implementing expert advice that is given.

A true 10-year plan is a combination of review and input from a building inspector who has thoroughly inspected the property, various services contractors who currently work on the property and owners/residents who use the property on a daily basis – all pulled together by the Council of Owners to reflect the needs and aspirations of the Owners.

In some cases, a document prepared by a consultant can be rubber-stamped by the COO as ‘the plan’. But In most instances, there needs to be far more of a round-table approach to really get a meaningful 10-year maintenance document.

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Andrew Booth | ABBC Building Inspectors andrew@abbc.net.au

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Bullying & Harassment Liability and Cover

Who can be held liable in a Bullying and Harassment case by a tenant in a Strata development? Does the COO need to take out an insurance cover against such claims?

Under the Strata Titles Act there is no relationship between the strata company and a tenant.

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Who can be held liable in a Bullying and Harassment case by a tenant in a Strata development?

Brian Rulyancich: Under the Strata Titles Act there is no relationship between the strata company and a tenant. The relationship exists between the owner of a lot and his or her tenant in this instant the tenant as the occupier of the lot is contravening the following by-law: Schedule 2 – Governance item 4 Behaviour of owners and occupiers.

An owner or occupier of a lot must be adequately clothed when on common property and must not use language or behave in a manner likely to cause offence or embarrassment to an owner or occupier

of another lot or to any person lawfully using common property.

The strata company would need to issue the appropriate notices to the owner of the lot detailing what the behaviour of their tenant and what needs to be done to rectify the situation.

If it continues it go to SAT for an order and possible fine.

Also due to the nature of the incident it may also be a Police matter.

Does the COO need to take out an insurance cover against such claims?

Tyrone Shandiman: Strata Insurance policies provide covers to assist a strata corporation in the event a bullying and harassment claim is made against them.

The following sections in most strata policies should be considered by the strata corporation: • Legal Defence Expenses covering Legal fees, costs, and expenses incurred in legal proceedings initiated against the strata corporation. It should be noted that this cover is limited to the costs associated with defence costs only and does not extend to cover settlements, judgements or damages. Cover under this section is not an “open cheque book” and a claim is only indemnified if the strata corporation can demonstrate there are reasonable prospects of a successful defence.

• Office Bearers Liability insurance which covers claims made against office bearers in the event a legal claim for bullying & harassment. This section extends to both defence costs and settlements, judgements or damages.; The Strata Corporation should seek advice from their insurance adviser on cover available for bullying & harassment claims in their strata policy if they believe their cover is specifically required for this risk exposure.

Tyrone Shandiman | Strata Insurance Solutions tshandiman@iaa.net.au

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Brian Rulyancich | StrataTAC strata@stratatac.com.au

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Should You Remove

Asbestos in Your Building?

Our WA building has the Q original eaves which are asbestos. We are having painting carried out. Can we request the painting company remove the asbestos as part of the painting process?

A

Asbestos in good condition does not carry a legislative requirement to be removed.

Asbestos is now well known as a dangerous product that can cause life threatening diseases. Unfortunately, this product was widely used up until the 1990s and in some parts of the country even later.

In regards to this question, however, asbestos in good condition does not carry a legislative requirement to be removed. Asbestos kept in good condition can safely be painted and kept within a building for many decades.

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Only once asbestos or asbestos containing material (ACM) becomes damaged or friable is there a duty of care to remove or make safe the product.

For instance, if the eaves were cracked, broken or fibrous the Strata Company should commission the safe removal and disposal of the product as it would present an immediate health risk to any visitors or occupants.

In this instance, if the asbestos is in good condition the Strata Company cannot be forced to remove the product. Simply the painters will need to be made aware of the ACM and ensure they do not sand down the eaves prior to painting. If asbestos has been identified in your building previously, you should already have in place a register and management plan listing the locations of the asbestos on common property as well as suitable ways to manage the product.

Best practice however would be to remove the product as it is approaching 50 years of age and will eventually deteriorate. Utilising your 10 Year Maintenance Plan, have the eave replacement added as a line item to be funded for with levy contributions. That way by year 5, 8 or 10 your Strata Company may have raised enough funds to have the ACM removed at the same time the eaves are due for repainting.

If you are concerned about the condition of the asbestos in your eaves or other parts of the building, have the Strata company organise a suitably qualified inspector to come to site and assess the integrity of the product and provide a report to the Strata Manager and CoO.

Dakota Panetta | Solutions in Engineering dakotap@solutionsinengineering.com

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Electrical Energy On Pty Ltd Providing utility network solutions P: 1300 323 263 W: https://www.energyon.com.au/ E: EnergyServices@EnergyOn.com.au

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P: 0409 459 343 W: https://completeprojectswa.com.au/ E: info@completeprojectswa.com.au

Lifts and Elevators Equity Elevator Consultants Saving our clients time and money P: 1300 080 816 W: https://www.liftsconsultant.com/ E: enquiry@equityelevator.com.au Innovative Lift Consulting Pty Ltd Trusted Vertical Transportation Consultants P: 0417784245 W: https://www.ilcpl.com.au/ E: bfulcher@ilcpl.com.au

Painting Higgins Coatings Pty Ltd Specialist painters in the strata industry P: 1300 HIGGINS W: https://www.higgins.com.au/ E: info@higgins.com.au Calibre Coatings Committed to Delivering Excellence in Painting P: 0423 800 153 W: https://www.calibrecoatings.com.au/ E: wa@calibrecoatings.com.au

Parking Delineation Line Marking Perth’s Line Marking Service P: 0497 314 758 W: http://www.delineationlinemarking.com/ E: Geoff@delineationlinemarking.com

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Attention WA Strata Service Professionals

Join our printable Strata Services Directory today

Contact lizaj@LookUpStrata.com.au to find out more today!

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