The WA Strata Magazine | April 2022

The WA

STRATA MAGAZINE APRIL 2022

Is the lot owner responsible if their visitor damages common property?

Page 8 | Strata Insurance Solutions

Can a Strata Company prohibit the transit of pets in a lift?

Page 16 | Strata Title Consult

Are strata managers responsible for people who do work on the common property?

Page 22 | Anthony Quahe, Civic Legal

About Us LookUpStrata is Australia’s Top Property Blog Dedicated to Strata Living. The site has been providing reliable strata information to lot owners, strata managers and other strata professionals since 2013.

As well as publishing legislative articles to keep their audience up to date with changes to strata, this family owned business is known for their national Q&A service that provides useful responses to lot owners and members of the strata industry. They have created a national network of leading strata specialists across Australia who assist with 100s of the LookUpStrata audiences’ queries every month.

Strata information is distributed freely to their dedicated audience of readers via regular Webinars, Magazines and Newsletters. The LookUpStrata audience also has free access to The LookUpStrata Directory, showcasing 100s of strata service professionals from across Australia. To take a look at the LookUpStrata Directory, flip to the end of this magazine.

Meet the team

Nikki began building LookUpStrata back in 2012 and officially launched the company early 2013.

With a background in Information Management, LookUpStrata has helped Nikki realise her mission of providing detailed, practical, and easy to understand strata information to all Australians.

Nikki shares her time between three companies, including Tower Body Corporate in SEQ, and is currently in her third term on the SCA (WA) Education and Professional Development Committee.

More recently Nikki has become known for presenting regular strata webinars, where LookUpStrata hosts a strata expert to cover a specific topic and respond to audience questions.

Nikki Jovicic Owner / Director

Liza came on board in early 2020 to bring some structure to LookUpStrata. She has a passion for processes, growth and education. This quickly resulted in the creation of The Strata Magazine released monthly in New South Wales and Queensland, and bi-monthly in Western Australia and Victoria. As of 2021, LookUpStrata now produce 33 state based online magazines a year.

Among other daily tasks, Liza is involved in scheduling and liaising with upcoming webinar presenters, sourcing responses to audience questions and assisting strata service professionals who are interested in growing their business.

Liza Jovicic Sales and Content Manager

Learn more here → https://www.lookupstrata.com.au/about-us/ You can contact us here → administration@lookupstrata.com.au

2 www.lookupstrata.com.au 2 www.lookupstrata.com.au

Contents 4 Amending motions on the agenda Shelley Fitzgerald, Strata Alliance

6

MIMOR puts residents in charge MIMOR

8 Is the lot owner responsible if their visitor damages common property?

Tyrone Shandiman, Strata Insurance Solutions

10 Celebrating 10 Years | Supporting Lot Owners, Committees & Strata Buildings Australia Wide Strata Insurance Solutions

12 Can a strata company charge a full 10% penalty on late levies?

Luke Downie, Realmark

14 Remedial Repairs: How owners can regain control Sedgwick

16 Can a Strata Company prohibit the transit of pets in a lift?

20 Is it harsh and unreasonable to ban unsupervised children from the pool?

Rochelle Castro, RC & Co Lawyers

22 Are strata managers responsible for people who do work on the common property?

Anthony Quahe, Civic Legal

24 New WHS Legislation and what that means for volunteers working on common property QIA Group

26 Can an individual lot owner impose a fee for non-compliant parking on common property?

ESM Strata Team, ESM Strata

28 Filling a mid-term vacancy on the council of owners Shelley Fitzgerald, Strata Alliance

30 Should we be planning for EV Charging NOW? Peter Berney & Dakota Panetta, Solutions in Engineering

Shane White, Strata Title Consult

18 Can co-owners share a position on the council?

Andrew Chambers, Chambers Franklyn Strata Management

32

Creating Community SCA (WA)

34 The WA LookUpStrata Directory

Thanks to our sponsors

Amending motions on the agenda 4 www.lookupstrata.com.au

Q

A

At an Extraordinary General Meeting, can a motion on the agenda be amended?

Amending a motion would be dependant on the type of motion that is under notice.

An EGM is normally convened for a specific purpose or to determine specific actions.

Section 128 of the Strata Titles Act notes that the Council my convene an EGM if they think fit to do so, or they must convene if requisitioned by 25% or more of the unit entitlements of the lots.

There are also several different types of resolutions ie: Unanimous, Special, Resolution Without Dissent, Ordinary and the newly implemented Circular Resolution.

The circular resolution can be any of the other types of resolutions however done via circulation of documents and no physical presence required. All resolutions require at least 14 days’ notice to the proprietors prior to the meeting for the voting to be valid.

With votes being received prior to the meeting, the owners do not have the opportunity to vote on an amended motion.

An ordinary resolution, if the EGM were to be via zoom or physical presence, may be able to be amended if supported by the majority of the owners present or represented at that meeting. If voting is done via a circular resolution or prior electronic voting, an amendment would not be able to be put to the meeting as the voting has been allocated on the original motion under notice.

It is important for the Strata Company to ensure the motion under notice to the proprietors is clear, specific and detailed which will assist in minimising confusion and queries.

READ MORE ON THIS TOPIC HERE

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

I note too that the Unanimous, Special and Resolution Without Dissent have a 28 day voting period from the date of the meeting.

Amending a motion would be dependant on the type of motion that is under notice. If it was an Unanimous, Special or Resolution Without Dissent, these types of motions cannot be amended at the meeting, they would be put to the vote and either be carried or fail (noting that there is 28 days for the owners to vote). If the original motion were to fail, then another EGM may be required for the voting to take place on the amended resolution, with all owners being provided another 14 days notice and 28 days to vote from the date of the meeting.

Amending motions, with the new legislation in place and the updates in technology, are very difficult to manage. Owners now have the ability to vote on every motion prior to the meeting via electronic software.

5

Mimor puts Residents in Charge Building Information What day do the bins go out? Which electricity supply is the building with? When is hard rubbish collection?

Moving into a new apartment block raises many questions, with the leasing agent or building manager often fielding most of the enquiries. But what happens when you need the answers quickly or after hours?

Australian entrepreneur Jake Sharp has solved the communication challenge, creating the Move In Move Out Register – MIMOR as a one-stop shop to overcome strata-living sticking points. The digital platform acts as a central information and communication

hub for residents and building managers and service providers, comprising vital building information, moving processes, procedures for booking facilities and common areas, general announcements and real-time communications via email and SMS alerts.

EVERYTHING YOU NEED TO KNOW ABOUT A BUILDING IN ONE PLACE, ACCESSIBLE 24/7.

Instead of having to search for leaflets or chase managers and agents, through MIMOR residents have easy access to vital building information 24 hours a day. At the click of a button, they can find the latest information regarding gas connections, electricity suppliers, water rates, internet availability, pets, connecting to Foxtel, how to obtain extra keys, Owners Corporation Rules, and emergency contacts and evacuation plans.

“It just makes sense to collate and centralise information necessary to individual needs as well as communal living, particularly details and contacts for essential services such as power and water utilities,” Sharp said.

“The scope of information is tailored to a building’s size and facilities, and can be added to or updated at any time, without the manager having to resort to reprinting leaflets or sending letters to hundreds of residents, so it’s far more convenient for them as well.’’

“I have even had feedback from long-term residents saying they had discovered a lot of useful information about their building after the owner’s corporation switched to MIMOR.” Information regarding lift dimensions and basement car park heights can also be included for residents moving in or out, which can also be booked through the MIMOR platform. Functionality also

info@mimor.com.au

mimor.com.au

extends managing parcel deliveries and collections, as well as booking common areas and building facilities.

MIMOR’s email and SMS communication function can also notify residents of urgent building information such as planned power outages, maintenance or emergency repairs.

MIMOR subscriptions are scalable, from three apartments to more than 500, and the platform is being translated into 10 languages, with a mobile app version to launch soon.

For more information, go to

mimor.com.au

Is the lot owner responsible for their visitor if they damage common property?

8 www.lookupstrata.com.au

In our strata complex, a lot owner’s visitor caused damage to common property by reversing their car into the gate. The cost to repair the damage is less than the insurance excess. As it was their visitor, is the lot owner responsible for the damage?

Initiate a recovery action against the driver.

In instances where an at fault party (driver) has caused damage to property below the insurance excess, we recommend the strata corporation initiate a recovery action against the driver.

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

READ MORE ON THIS TOPIC HERE

The best way to do this is firstly via a letter of demand which outlines: • Opening statement that you are making a demand (i.e. We would like to submit a letter of demand in relation to a recent incident. If you have insurance the we recommend this letter is sent to your insurer to lodge a claim under the public liability section of your insurance policy.)

• Circumstances of the event (include date & description of damage); • Why you believe the driver is responsible; • Summary of costs and a request for reimbursement (include invoices or quotes for repairs with your demand); • Bank details for reimbursement.

Should you not receive a favourable response to the demand letter, you may then apply to the applicable small claims tribunal in your state and they can order the driver to make payment.

9

10 www.lookupstrata.com.au

11

Can a strata company charge a full 10% penalty on late levies?

Q

Can our strata company charge a full 10% penalty for late fees rather than 11% simple interest?

Our strata company charges 10% penalty for late fees. I believe the Strata Titles Act only allows for simple interest to be charged at 11% per annum or as set by AGM. As such a one month late $800 payment should only incur interest of 1/12th of the annual 10% simple interest – eg. about $6.90 interest. Is that correct – or does the “as set by AGM” allow for the strata company to set a “penalty” of the full $80 to be charged to late payers?

A

The rate calculated in your example would exceed the 11% per annum set under the general regulations.

Section 100 of the Strata Titles Act 1985 sets out that a Strata Company must establish a fund for administrative expenses. If it is a designated Strata Scheme (10 lots and above or has a building replacement value of $5 million or above) it also must have a reserve fund and ten year maintenance plan.

The funds to meet these budgets is raised by levying contributions so determined on the owners in proportion to the unit entitlement of their respective lots (unless the scheme has a by-law in place varying this method).

The contributions become due and payable on the 1st day of the period in which they are for and section 100(4) provides that overdue levies bears interest on the amount unpaid at the rate of simple interest set out in the 12 www.lookupstrata.com.au

general regulations. Section 78 of the general regulations provides that the rate of simple interest specified is 11% per annum. This applies unless the company determines (either generally or in a particular case) that an unpaid contribution bears no interest or interest at a lesser rate.

The rate calculated in your example would exceed the 11% per annum set under the general regulations. The Act and its regulations does not allow for a Strata Company to determine an amount above the prescribed rate. It would appear that your Strata Company may be having difficulty understanding how to apply the rate of interest and as such I would recommend they seek advice or assistance from an accountant.

Some other points to note: •

Outstanding levies and any interest accrued can be recovered as a debt by the strata company in a court of competent jurisdiction.

•

The strata company may agree to a compromise of such a debt.

•

Interest paid or recovered forms part of the fund to which the contribution belongs.

The owner of a lot is liable in respect of any contribution levied and any interest on the contribution, jointly and severally with any person who was liable to pay that contribution and interest when that owner became the owner of that lot.

READ MORE ON THIS TOPIC HERE

Luke Downie | Realmark ldownie@realmark.com.au

It’s about creating a better result for the prosperity of strata owners.

Luke Downie.

Head of Strata Management

Realmark’s clear commitment to managing strata properties is refreshing. And it’s well beyond the everyday practicalities and compliance of property management.

It’s simply to work collaboratively with a community of strata owners and advise them of how to achieve the best of outcomes.

Accordingly, and with our 30 years of local in-depth experience with both commercial and residential complexes, we’re also well sought-after by developers and owners for our insights into the future requirements of their project after the registration of their strata plans.

To learn more on how Realmark can help create a better result for strata owners, simply get in contact.

Luke Downie, Head of Realmark Strata Management on 0479 095 889 or 9328 0909.

Realmark Strata 9328 0909 www.realmark.com.au/strata-management

R E M E D I A L R E PA I R S :

How owners can regain control Property owners, ensuring asset longevity is critical.

SCENARIO 1 - COST VERIFICATION AUDIT

To regain control of remedial repairs requires informed

Following recent floods, a client experienced water

decision making, strategic planning, clear expectations,

damage to their property. Five carpeted rooms were

cost control measures and a strong partnership with

impacted — requiring water extraction and cleaning to

strata/body corporate managers. This is especially true

restore them back to their pre-loss condition. The client

following recent legislation in Victoria that addresses the

engaged the expertise of a restoration expert

procurement of services on behalf of owners.

for support.

The legislation supports owners through the provision of competitive pricing and terms in the daily running of a strata property. When universally adopted, this approach can be worth the time and investment to achieve

As is all too often the case in these situations, a reactive approach and the drive to respond resulted in the client being charged well above industry standard rates and additional charges including but not limited to:

positive outcomes from the very beginning.

01

Unwarranted project management fees

Regaining control goes beyond selecting the cheapest

02

Unnecessary storm loading costs

03

Double dipping of holiday loading

04

Inflated drying equipment charges

option from a handful of quotes. Strata repairs can be complex, with many factors to consider to ensure the challenges and underlying cause(s) are addressed.

Taking the time to evaluate these factors will minimize the chance of re occurrence and ongoing issues or — in an emergency — mitigate further risk or damage to the property or an individual.

Setting clear expectations and defining your objective is key. Repair objectives need to:

(included within their original hourly rates)

An after-services audit identified that this was a simple restoration job when process and best practices were applied to determine the actual costs associated with repairs. Significant savings are achieved when using

•

Be inclusive of all repairs.

industry knowledge of costs based on cubic meter rates,

•

Conform to statutory requirements.

appropriate allocation and distribution of equipment,

•

Provide warranty of guarantee.

quantification and application of necessary chemicals

•

Ensure extent and cost of works is balanced with the benefits

It is critical to define both your objective and extent of

and materials, and associated labor costs.

$21,364.74

ORIGINAL INVOICE

$5,284.51

ACTUAL COSTS

PROVIDED

work required. Be clear in what you expect and outline your objective: •

You require repairs to be all inclusive

•

You need it to conform to statutory requirements

•

Your need a warranty of Guarantee

•

Extent & cost are balanced with the benefits

$16,080.23

INCURRED

SAVINGS

SCENARIO 2 - COST CONTROL AND PROJECT

The initial quote only allowed for the installation of 181

MANAGEMENT THROUGHOUT WORKS

x air movers, 62 dehumidifiers and 4 x Axial fans over

Larger and more complex jobs require a different

an undefined period of time. The review was able to

approach. For these situations, proactively engaging

identify that the available power load at the site would

experts can ensure proper management of and response

not support this approach and raised concerns around

to repairs and/or restoration requirements from the

secondary damage with potential mold growth.

beginning Cost and scope control measures are put in place and maintained for the duration of the works.

A drying regime, accompanied by the strip out of a component of wall linings led to a controlled, quantified

In the fit out stage of construction, vandals break into

and streamlined approach that ultimately resolved the

the complex of a strata building to destroy property and

repair and restoration aspects of the job — minimizing

turn on common area fire hydrants — causing water

risk, further damage and delay in handover.

damage to both building and contents, including floor coverings. Sedgwick was engaged to review an initial quote and proposed scope of works for the remedial repairs and restoration. A lack of detail and minimal

$158,025

ORIGINAL QUOTE

$57,084

C O M PA R I S O N Q U O T E

$100,941

SAVINGS

forensic information provided to substantiate the proposed works was identified.

Following Sedgwick’s attendance to site, the engagement of a preferred panel supplier was provided with a defined scope covering all elements of restoration — from labor costs to equipment requirements and placement.

SUPPORTING OWNERS & STRATA MANAGERS WITH TAILORED REMEDIATION AND REPAIR SOLUTIONS B U I L D I N G C O N S U LTA N C Y

R E PA I R S O LU T I O N S

•

Defect reports & forensic engineering

•

Emergency make safe

•

Scope of works

•

Fire water damage restoration

•

Dilapidation & risk surveys

•

Leak detection

•

Dispute mediation and expert witness

•

Contamination response

•

Contractor procurement and cost validation

•

Building repairs

•

Construction management

•

Cost validation services

•

Capital Works Funds/Maintenance Plans

•

Digital Capability

1300 735 720 sales@au.sedgwick.com

1300 654 599 sales@au.sedgwick.com

Pets in the Lift

Q

A

Can a Strata Company prohibit the transit of pets in a lift?

The standard by-law is silent regarding lifts, but should the animal present a nuisance, then the strata company can instigate the breach of by-laws process.

16 www.lookupstrata.com.au

Each Strata Company is bound by by-laws, whether they are the standard by-laws or by-laws contained in a Management Statement or Scheme By-laws.

Schedule 2 By-law 12 (c)

Additional duties of owners and occupiers An owner or occupier of a lot must not — c. k eep animals on the lot or the common property after notice in that behalf given to that person by the council.

The standard by-law is silent regarding lifts, but should the animal present a nuisance, then the strata company can instigate the breach of by-laws process if the animal is disturbing someone’s peaceful enjoyment.

There may be existing by-laws or ones contained in a Management Statement that determine if an animal can be in a lift or not.

The strata company also needs to ensure that when making decisions to enforce a by-law, that it complies with section 119 of the STA. 1. In performing its functions, a strata company is to have the objective of implementing processes and achieving outcomes that are not, having regard to the use and enjoyment of lots and common property in the strata titles scheme — a. unfairly prejudicial to or discriminatory against a person; or b. oppressive or unreasonable.

If the by-law said that all dogs must be carried when on the common property, then that may encourage owners to get small pets or join a gym to put on some muscle.

To prevent pets from transiting in lifts may be considered unreasonable, especially if the animal is well trained and obedient (unlike some owners or occupiers who use the lifts.)

In specific cases where a pet is aggressive to other occupants in the lift or toilets in the lift then it would be reasonable for the strata company to require the owner of the pet to either get it trained or use the stairs.

The worst case scenario for the pet is to have it removed.

READ MORE ON THIS TOPIC HERE

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

17

Can co-owners share a position on the council?

Can joint owners of a lot form part of the Council of owners if it is agreed that they still only retain a single vote?

Only one nominated owner from joint owners is eligible to be elected to the Council and only that nominated owner can then vote at Council meetings.

The answer unfortunately is no.

As per Schedule 1 By-law 4(6) only one nominated owner from joint owners is eligible to be elected to the Council and only that nominated owner can then vote at Council meetings. It can’t be an interchangeable role between the joint owners of the lot.

That said, it’s not unusual for the Council to occasionally invite co-owners (or indeed any other owner) to attend Council meetings as a guest to provide input about matters being discussed, but those invitees cannot propose motions or vote on any motions at any Council meeting.

Andrew Chambers | Chambers Franklyn Strata Management andrew@chambersfranklyn.com.au

18 www.lookupstrata.com.au

READ MORE ON THIS TOPIC HERE

19

No Children in the Pool

Is this harsh and unreasonable?

Our new apartment building has a blanket rule stating teenagers must not be in the pool unsupervised. My son was recently removed from the pool by a guard. Is the enforcement of this rule harsh and unreasonable?

In our newly built residential apartment block in WA there is a blanket restriction stating that a teenager needs to be at least 16 years old before being allowed to swim unsupervised in the 1.2 meter pool. My 12 years old son is the size of an adult and an excellent swimmer, possibly a better swimmer than most adults.

He was recently removed summarily from the pool by a guard for being underaged with no parent present and escorted away from the common property back to our apartment. At the time there were only 2-3 people in the pool. The guard claimed he was doing this because he was instructed to and that it was for the boy’s safety!

Are the council or owners within their rights to enforce this rule? Does this action not qualify as being too ‘harsh’ and ‘unreasonable’? Is there any way for me to stop this unreasonable application of this by-law?

20 www.lookupstrata.com.au

A by-law requiring that children must be supervised by an adult when using the common pool is a common and valid by-law.

The strata company could create and enforce bylaws relating to use of the common property. A by-law requiring that children must be supervised by an adult when using the common pool is a common and valid by-law.

the manner in which the bylaw was enforced (i.e. they should have not permitted the child to enter the pool rather than removing him that caused a scene or could have harmed the child by the manner of removing him

If you will dispute the circumstances that you have described, in my view, it should not focus on the validity of the by-law but on

READ MORE ON THIS TOPIC HERE

from the pool). This way the strata company keeps with their obligations to appropriately manage the use of the common pool rather than simply reacting when breaches occur.

Rochelle Castro | RC & Co Lawyers law@rccolawyers.com

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Records the service cycle of your asset and assists with budgeting.

21

Are strata managers responsible for people who do work on the common property?

April 2022

There are a couple of strategies for managing the risk associated with engaging people to do work on common property. One is around insurance and the other is around scope of work.

These things turn on legal questions such as whether the person doing the work is considered to be a ‘worker’ under the Act. They also turn on whether the person who engaged them is considered to be an ‘employer’ under the Act. So a strata manager or strata company might become liable to pay workers’ compensation to someone held to be their worker under the Act - even though there is no contract of employment between the two.

Where a strata manager or strata company has to do work on common property, it is relatively clear that

Who is considered to be a ‘worker’?

they are obliged to act as responsible employer. This

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employees such as gardeners, cleaners and concierges,

means ensuring that the workplace is safe and that the employees are adequately trained to do their jobs in a safe

works under a contract of service (i.e. a contract of employment) with an employer.1 In other words, an

and competent manner.

employee is a ‘worker’ for these purposes.

But the majority of strata schemes do not have the

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luxury of employees doing such jobs. Instead, various suppliers are engaged to help maintain common property.

These gardeners, swimming pool maintenance contractors and cleaners might be self-employed, or part of a company providing services to the strata company via the strata manager.

It is therefore important to know whether the strata manager

‘worker’. As a result, the term extends to individuals who work under a contract for service.2 This would include people who provide personal manual labour or services under a contract, sub-contract or casual basis. Such people might therefore be considered ‘workers’ under the Act even though they are not employees of the strata manager or strata company.

(and by extension the strata company) is responsible for the health and safety of such workers. And if they are injured, is the strata manager (or strata company) who engaged them liable under the Workers’ Compensation and Injury Management Act 1981 (WA) (the Act)?

1 2

Workers’ Compensation and Injury Management Act 1981 (WA), s 5.

Ibid.

© Civic Legal 2022

www.civiclegal.com.au

Who is not considered to be a ‘worker’ under the Act?

This raises other legal problems, such as whether the

One indicator that a person might not be considered

either the strata manager or the strata company. Another

a ‘worker’ under the Act, is if he or she has their own

legal problem would revolve around whether the strata

workers’ compensation insurance. Another indicator might

company would escape responsibility because the strata

be where the ‘worker’ is a director of a company which

manager had no power to engage the worker to do

has a number of employees. Yet another might be if the

unauthorised functions.

strata manager does not supply the tools. If a dispute arises, then each case would need to be considered on its own facts.

worker legally engaged to do work in an unauthorised role would be covered by the workers’ compensation of

Being appropriately insured and being clear about the role of the person engaged to do work on common property is an exercise in prudent management. And prudent

Note that the Act will not recognise any written agreement

management strategies such as these will go a long way

that seeks to describe someone as not being a ‘worker’ if

to protecting the strata manager, the strata company, and

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ultimately the lot owners from unnecessary risk.

is therefore designed to weed out sham agreements.

Mitigating the risk Strata managers and strata companies can mitigate their risk of exposure to workers’ compensation claims by only

Contact For assistance with strata matters, please contact:

hiring contractors who are not considered to be a ‘worker’

Anthony Quahe Managing Principal T 08 9200 4900 E aquahe@civiclegal.com.au

under the Act. In general, when a principal engages another party to do work, both will be liable under the Act to cover their employees and sub-contractors and must each have a workers’ compensation policy.3 Therefore, it is in the best interests of the principal (in these cases, the strata manager or strata company) to ensure that whoever they engage has valid and appropriate insurance cover.

Strata managers (or strata companies) should also take out an appropriate workers’ compensation policy to cover everybody who does work on common property. The relatively small cost of paying a higher premium will give SHDFH RI PLQG DQG VKRXOG EH ZHLJKHG DJDLQVW WKH ¿QDQFLDO exposure of possible workers’ compensation claims.

In this context, note that strata managers cannot authorise individuals to perform any function other than repair or maintenance work as an agent, employee or contractor of the strata manager or company. For example, a strata 4

manager cannot engage a person to control and manage the common property, as this is a function that the strata company can authorise only the strata manager to perform.

3 4

Disclaimer: This publication contains references to and general summaries of the relevant law and does not constitute legal advice.

The law may change and circumstances may differ from reader to UHDGHU 7KHUHIRUH \RX VKRXOG VHHN OHJDO DGYLFH IRU \RXU VSHFL¿F circumstances. The law referred to in this publication is understood

by Civic Legal as of publication date.

Workers’ Compensation and Injury Management Act 1981 (WA), s 175.

Strata Titles Act 1985 (WA), s 143(5)(a); Strata Titles (General) Regulations 2019 (WA), r 91.

© Civic Legal 2022

www.civiclegal.com.au

New WHS Legislation and what that means for volunteers working on common property

Q

With the new WA WHS Legislation, has anything changed with volunteers working on common property?

A

Volunteers are a worker and that’s more clearly defined.

The short answer is no.

Volunteers are a worker and that’s more clearly defined. If you have responsibilities to workers, then it clearly defines what those responsibilities are. If you’re a person conducting a business or undertaking (PCBU), you will have responsibilities with respect to volunteers. If you’re not a person conducting a business or undertaking then you won’t.

That said, a lot of strata companies that I’m aware of throughout the various states have a debate as to whether they should have 24 www.lookupstrata.com.au

workers compensation insurance. My answer to that question is ‘Yes’, every time. Just do it. It’s not a lot of money and it protects you because there are deeming powers that the relevant authorities have to say, ‘We might deem this person to be an employee, even if you think you’ve engaged them as a contractor’.

READ MORE ON THIS TOPIC HERE

QIA Group info@qiagroup.com.au

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25

Can an individual lot owner impose a fee for non-compliant parking on common property?

Q

As a lot owner, I feel I own part of the common property. Residents are parking on this common property.

Can I personally charge them rent for the use of this space?

I own and reside in one lot of an eight lot self-managed strata complex in WA. In our ‘Welcome to the Complex’ guidelines, the owners have asked that each unit is to limit the number of vehicles to 2 and those 2 vehicles are to be parked in their designated parking spaces, not on the common property.

One of the Unit’s tenants continue to ignore these conditions relative to both the number and where they park, so in effect, they are using my 26 www.lookupstrata.com.au

property, the common property that I pay rates on and my fees help to pay the third party insurance on, as their own personal parking bays.

As an individual, can I charge these people rent for the use of the common property. If not, what are some other solutions that I could implement?

A

Can an individual lot owner impose a fee for non-compliant parking on common property? In short, unfortunately no.

The lack of parking bays and allocation can cause great discord within a strata community; parking in another resident’s spot, parking on common property and blocking entry/exits.

To determine who has ‘ownership’ of any part lot parking bay, you must refer to your strata plan. If you cannot identify any parking bay clearly identified on the plan as your part lot, you do not ‘own’ the bay.

You also need to refer to any bylaws attached to your strata plan. You may well have a ‘House Rules’ or a ‘Welcome to the Complex’ document, but it has no enforceable standing unless it is registered as a bylaw on your strata plan, or directly relates to a registered bylaw.

Parking bylaws would fall under Schedule 2 Conduct bylaws, in accordance with the Strata Titles Act 1985. The standard bylaws include the following bylaw which may apply to your scheme;

1. Vehicles and parking 1. An owner or occupier of a lot must take all reasonable steps to ensure that the owner’s or occupier’s visitors comply with the scheme by-laws relating to the parking of motor vehicles.

2. An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the written approval of the strata company.

Is the lot being managed by a Property Manager on behalf of the owner? It’s the responsibility of the owner (or Property Manager engaged to represent the lot), to ensure the occupant complies with all strata company bylaws, including parking allocation.

Can an individual lot owner impose a fee for non-compliant parking on common property?

In short, unfortunately no, you cannot impose a fee yourself.

Common property is shared amongst all owners, therefore any alteration to the use of common property would need to be considered by all owners and managed by the elected Council of the Strata Company.

In this case, it sounds as though the Council of the Strata Company should exercise the Strata Company’s General Duty to ‘control and manage the common property for the benefit of all the owners of lots’.

This usually requires some discourse between the Council, and the offending resident, in an effort to resolve the misuse of Common Property.

READ MORE ON THIS TOPIC HERE

If the issue cannot be rectified in good faith in the first instance between the Strata Company, the lot owner and the occupant, the Council of the Strata Company may continue to exercise their General Duty by issuing a formal Breach Notice to the owner or directly to the tenant, in accordance with Section 47 of the Act. The Council of the Strata Company may also request that the owner/Property Manager breach their tenant under Section 85 of the Residential Tenancies Act. Should this pattern of conduct continue, despite at least 3 breach notices being issued by the Strata Company, the Strata Company has the ability to have the matter heard at the State Administrative Tribunal by submitting an application to the SAT. If the Council of the Strata Company is not active, you should try speaking directly with the occupant, owner, or property manager to have the matter resolved if possible. There are many compelling reasons why you would want to avoid litigation. Taking matters further to the SAT can be time consuming, distracting and expensive. If however, you are unable to resolve the matter amicably, we recommend seeking professional advice and potentially making an application to the State Administrative Tribunal.

ESM Strata Team | ESM Strata esm.support@esmstrata.com.au

27

Filling a mid-term vacancy on the council of owners

Our 7 member COO has a mid-term vacancy. 50% of the remaining members have voted ‘No’ to filling the vacancy, despite a relevant nomination.

Can three of the COO make this decisions?

We live in a building of 34 apartments in WA. The strata company voted at the last AGM to have 7 members on the COO. One of the members of the COO sold her apartment, leaving a vacancy on the COO. An owner nominated himself, backed by two other owners, to be on the COO and fill the vacancy. I am one of the two supporting owners.

28 www.lookupstrata.com.au

The COO can continue to act as if they still have 6 members, therefore still fulfilling their quorum requirements.

The existing members of the COO had a meeting where the voting took place, 3 for his appointment and 3 against.

Notwithstanding the three that voted against decided to reject his nomination and keep the COO at six members only.

The other three that voted for were in fact ignored.

As voting by all owners to approve 7 members was carried out at the AGM, should this be complied with until voting can be done again at the next AGM ?

Can three of the COO arbitrarily make decisions without observing the vote of all owners?

The matter is becoming quite urgent and serious with an owner looking into legal options.

Please bear in mind that we have not viewed the Strata Plan or the bylaws for this Strata Scheme. Our response therefore is reliant on the Standard Governance bylaws being the bylaws for this Strata Scheme.

The Governance bylaws provide the following: •

Bylaw 4 (3) COO consists of not less than 3 nor more than 7 of the owners, as determined by the Strata Company at their Annual General Meeting

•

•

•

Bylaw 4 (9)(a) A COO member vacates office when they cease to be an owner or co-owner or on resignation or death?

Bylaw 4 (10) The remaining members may appoint a person eligible for election to the council to fill a vacancy in the office of a member of the council

•

Bylaw 4 (11) A quorum of the council is 4 if the council consists of 7 members

•

Bylaw 4 (12) The continuing members may continue to act if there is a vacancy in the council – as long as their number of members is not reduced below the quorum

Bylaw 6 (1) The members must appoint a chairperson, treasurer or secretary at their first meeting after they assume office as such members

be filled by any other current member as per Bylaw 6 (2)(b).

•

Bylaw 6 (2) (b) A person may be appointed to 1 or more of those offices

•

Bylaw 6 (3A) The remaining members must appoint a member to fill a vacancy in an office ie: chairperson, treasurer or secretary

As per the bylaws listed above, when a Strata Scheme elects 7 members to the Council at an AGM, the quorum is determined to be 4. All matters put to the COO for consideration will require 4 members to confirm their agreement/approval as the quorum, and for the matter to be resolved.

Schedule 1 Bylaw 4 (10) provides the remaining members of the council with an ability to elect another member however this is optional to the COO as the bylaw specifies the COO may appoint a person eligible for election to the council to fill a vacancy in the office of a member.

If the vacating member was an office bearer then this office vacancy must be filled as per Bylaw 6 (3A), however this can

READ MORE ON THIS TOPIC HERE

As per your notes, the council have met and considered the election of another member to fill the member vacancy.

The motion has not been supported by a quorum of the council and therefore the nomination has not been accepted. This process is in compliance with the legislation and the Strata Company bylaws and is not required to be referred to all owners via an Extraordinary General Meeting to resolve or consider. The council are elected annually, with the term finalising at the conclusion of the next Annual General Meeting.

The COO can continue to act as if they still have 6 members, therefore still fulfilling their quorum requirements.

The Council has limitations set within the legislation in relation to the funds they are able to expend without further authority from the owners and other approvals or formalities.

The recent legislation reform also requires the COO members to act honestly and in good faith, exercise a degree of care and diligence, and disclose any direct or indirect pecuniary interest that may conflict with their performance on any matter as per Section 137.

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

29

Should we be thinking about and planning for EV Charging NOW?

30 www.lookupstrata.com.au

Q

As a small complex of 16 lots in WA, should we be thinking about EV charging and adding this into our reserve fund now?

With Electric Vehicles on the horizon, should this be something we add to the reserve fund? How many existing complexes have a Grid Supply that can cater for large number of charging stations? We’re a small complex of 16 Units with 24 car bays. We expect costs to be somewhere in the $80-$100k range.

Is there a quota for the number of EV Chargers per number of lots – say 2 car bays per EV Charger?

Should we be looking at this now to ease the burden later?

Dakota Panetta | Solutions in Engineering dakotap@solutionsinengineering.com

READ MORE ON THIS TOPIC HERE

A

We commend you and the Council of Owners for being so proactive and thinking ahead in this regard.

Well firstly, we commend you and the Council of Owners for being so proactive and thinking ahead in this regard. After our presentation that showed what happens if you fail maintenance, it is nice to see committees out there thinking ahead for the future.

We have had a lots of requests and discussions in regard to installing EV Charging and at this stage all you can really do for forecasting is get some comparative quotations and we can incorporate these into a report.

What I think we will see, like all technology that has come before it, is that over time and as demand increases the cost of the technology will fall dramatically. As the tech advances and becomes more widely used, the expense will drop for Strata Schemes. TVs are a good example. Big Plasmas at one point cost $15,000 each now you can pick up a random one in Aldi next to the oranges for $499.

32 www.lookupstrata.com.au

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Would you like your Strata Story featured in the next edition of The WA Strata Magazine?

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Some examples of what you may wish to share: • A project you have implemented in your complex that has made a positive impact (e.g a process, community building activities, parking procedure, ect) • Do you have a funny story to share about strata living?

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