The WA Strata Magazine | September 2021

The WA

STRATA MAGAZINE SEPTEMBER 2021

Are Lot Owners Required to Have Public Liability Insurance?

Page 12-13 | Strata Insurance Solutions

What Strata Records can Lot Owners Access?

Page 20-21 | EYEON Property Inspections

Solving Visitor Parking Issues In a Perth City Apartment Block Page 30-31 | B Strata

Compounding

Matters

Your Building's Superannuation

For most, superannuation really only gathers relevance in the later stages of life. This makes sense, as the goal is now in view and preparations to build the funds become the primary focus as the picture of what retirement might actually look like becomes clearer.

For those fortunate enough to have built a substantial amount during their lives, this is a happy period and brings with it the comfort that their lifestyle will be preserved (or increased) once they finish work and move into the next phase of life. For many, this is also a time of regret that they didn't start earlier or make more effort to contribute more to their retirement savings or focus on how it was invested.

Strata & sinking funds can be looked at similarly, but thankfully with a much higher level of clarity over what is required at the other end. The increasing requirement for buildings to have a 10-year plan (now mandatory in many states for specific sized buildings) has meant that much of the ambiguity found in personal retirement plans can be removed, and more defined costings and timelines can be established.

So, with the periodical and significant costs of replacing substantial components of a building now clearly defined, the 'financial plan' of a building is thankfully a lot easier to compose. There is an existing amount and a reasonably good idea of the end amount required, and all that is left is the pathway there.

Essentially this all now boils down to two major components: 1. Contributions to the fund (strata levies) and 2. The rate of return available to compound the accumulating funds.

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Compounding Matters

Albert Einstein reportedly said it. "Compound interest is the eighth wonder of the world. He who understands it, earns it. He who doesn't, pays it."

A NEW SOLUTION TO A NEW PROBLEM

In the frame of long term investment, there is no more crucial aspect to understand.

This is the reason we started Strata Guardian.

We understand the importance of seeking higher returns to minimize the need for tough decisions like raising (and reraising) annual strata levies to keep a building’s strata fund on track to help meet its goals.

For most Australian buildings' strata funds, the rosetinted glasses of previous years can be worn with honesty. Term deposits, the default and most secure investment vehicle for these funds over the last few decades, have proven useful with interest rates providing a reasonable return, and little thought has been required in managing these holdings. As the adage goes, 'if it ain't broke, don't fix it.'

For many financial controllers, the task at hand was simply rolling over the term deposits and perhaps a precursory check of better rates at another institution.

For more information, head to strataguardian. com and book a call back to discuss. We would love to speak to you about how you can help your Strata Company get on the right side of compounding your building’s superannuation.

The ways of before, unfortunately, are proving now to be inappropriate going forward. As global central banks (including Australia) are consigned to relaxed monetary policy, leading to sub 1% rates of return on traditional options like the term deposit, more effort is now going to be required to ensure that the financial goals of the savings can still be met.

The difference between a prior and current term deposit and cash rates is significant on long term savings.

But where to find a reasonable return rate that still offers sufficient protection from the perils of modern markets and can provide confidence to all lot owners that their hard-earned contributions can be reliably invested and accessed when they need it?

There are plenty of places to find higher returns, but does your Strata Company have the experience to wade into risky markets with confidence?

Contact Us Today 1300 482 736 www.strataguardian.com contact@strataguardian.com 25 Palmerston Crescent, South Melbourne 3205 Strata Guardian Pty. Ltd. ABN 20 646 722 518 is a Corporate Authorised Representative of Strata Advice Pty Ltd - AFSL 528306

3

Painting the Building When Boundaries are the External Walls

Q

How do we manage the exterior painting of a high rise scheme where the boundaries are the external walls?

I was wondering how, in accordance with the strata legislation, you can correctly manage the exterior painting of a high rise scheme where the boundaries are the external walls.

What happens when we need to paint and the walls of the building are technically not common property? How does our strata company divvy up the cost? Are painting contractors able to separate the quote?

Do other strata companies add some kind of by-law to pass the responsibility of the above to the strata company? Wouldn’t this be deemed invalid as it contravenes the Act/boundaries?

A

The strata manager / council of owners need to work out cost distributions and that would be based on areas.

To answer your first question it is difficult as I did have a management a few years back in Northbridge that was as you described, but you need to deal with ownership and maintenance responsibilities as detailed on the strata plan. It’s difficult but as a strata manager and a council of owners you need to work out cost distributions and that would be based on areas. Difficult but achievable.

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No you can’t put a by-law in place to transfer responsibility to the strata company as no bylaw can override what is in the body of the act.

In a situation like this the boundaries should be under Schedule 2A – section 2(a)(b) of the Strata Titles Act 1985 i.e. each lot should be cubic airspace as ownership, then in this case the external walls would become common property and the maintenance would rest with the strata company.

This can be done. You would need a meeting of all owners to lay out the reasons and benefits then progress from there.

Brian Rulyancich | StrataTAC strata@stratatac.com.au

READ MORE ON THIS TOPIC HERE

5

Instructing the Strata Manager

Q

Our committee instructed the strata manager to conduct additional services not specified in their contract. Should the manager have refused the request?

Division of Common-area work and exclusiveuse area work.

Our committee instructed the strata manager to include exclusive use area work with work in the common area and sent a “miscellaneous invoice” to all owners when the work was not requested or needed by every owner.

The additional service for exclusive use areas is not specified in our contract with the strata manager. Should the manager have refused the request? Are the actions of the committee in contravention of the act?

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A

It’s not generally the Strata Manager’s position to refuse the direction of the Council.

It would be very beneficial to know what the exclusive use by law says around the maintenance of exclusive use areas. It’s generally anticipated that the maintenance within this exclusive use area would generally fall onto the owner saying that sometimes they do put the onus on the strata company to maintain. So that is a little bit difficult to answer.

Assuming the exclusive use bylaw puts the onus on the owners, I guess there’s a couple of steps that should have been followed. In the end, the strata company, via the Strata Manager, should give notice to the owners around the need to potentially undertake maintenance within their exclusive use area.

Then the Strata Company may reserve the right to step in and make those repairs.

I don’t know what has been undertaken from this inquiry, so it’s hard to really talk to it further.

Should the Strata Manager have refused the request from the Council of Owners? As long as the Strata Manager was informing the council around where the boundaries of maintenance and exclusive use areas are and the council’s being happy to instruct otherwise, it’s not generally the Strata Manager’s position to refuse the direction of the Council.

Are the actions of the committee in contravention of the Act? There has been precedent set that suggests that the Strata Company shouldn’t be maintained exclusive use areas where the bylaw details that but again, without actually knowing and being able to read the bylaw around exclusive use, I’m not willing to suggest that they have contravened the act.

READ MORE ON THIS TOPIC HERE

Scott Bellerby | B Strata

scott.bellerby@bstratawa.com.au

7

How to Run A General Meeting Q

At an AGM, which resolution do we use to adopt the minutes of the previous AGM?

At an AGM, which resolution do we use to determine whether or not the minutes of the previous AGM are confirmed as a true and accurate record of the proceedings of the meeting? Do we use a Unanimous, Without dissent, Special, or Ordinary resolution to determine the vote?

A

The Dept of Commerce provides a guide on how a general meeting is run.

(7) A resolution of a strata company is an ordinary resolution if — a. f or a resolution passed other than at a general meeting, 14 days’ notice of the terms of the proposed resolution is given to each member of the strata company before voting on the resolution opens; and

b. i t is passed when counted as required under section 122 (1)(c) — a. b y number — by more than 50% of the number of lots for which votes are cast; or b. by unit entitlements — by more than 50% of the sum of the unit entitlements of the lots in the scheme for which votes are cast.

Note for this subsection: Section 127(4) of the Strata Titles Act 1985 provides how business is determined on the agenda.

127. Annual general meetings of strata company 4. All business transacted at an annual general meeting other than that referred to in subsection (3) is taken to be special business.

Section 123(7) of the Strata Titles Act 1985 provides for what is an ordinary resolution.

There is nothing contained within the act to say that any other type of resolution is required for the adopting of the minutes of the previous meeting.

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For an ordinary resolution, the question is determined against the resolution on an equal number of votes whether counted by number or by unit entitlements.

The Dept of Commerce provides a guide on how a general meeting is run: Meetings This resource also provides details on how a meeting should be run, including the adopting of the minutes of the previous meeting.

READ MORE ON THIS TOPIC HERE

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

9

Best practice in defect and remedial works management Construction techniques in Australia have diversified considerably over

Enabling Owners Corporations to properly understand construction issues

the past few decades, transitioning from conventional 1970’s solid style

and defects to their property as early as possible is critical to ensure

vertical masonry structures to modern day, light weight elaborate designs

informed decisions can be made well in advance of any remedial work

that in some cases defy gravity. Consumers demand more from property

occurring.

investments today, where cutting edge modern design is usually favoured

When issues and defects do present, strategies for consideration by all

over traditional basic techniques that were successful over time but are no longer visually appealing.

Curved facades, open plan rooftop gardens living areas and indoor / outdoor rooms are examples of changes that provide more functionality but have also significantly challenged the building industry in both the design and construction areas. Failure to apply proper attention to these

owners corporations include: • Maintenance or a defect • Existing warranties or contract obligations from the original builder • Immediate mitigation measures that can be implemented to prevent further damage

areas almost always results in defects that in many cases, cost far more to

• Legal and/or insurance advice

rectify than the cost to do it right in the first instance. In addition to repair

• Proper identification of the defect including exploratory works if required

costs, more often additional expenses are incurred such as damage to

• Detailed scope of work prepared by an independent qualified expert that

adjoining areas and loss of occupation where the total costs can spiral out of proportion.

Identification of building defects and management of the remedial works needed can be extremely challenging and often causes considerable stress to owners, both financially and logistically trying to navigate the minefield of complexity to strata buildings. When building elements fail, owners generally have not budgeted for the unexpected repairs and can often be pressured to go down a pathway of least resistance at the time, which is

complies with statutory requirements • Competitive quotes and tendering by appropriately licenced and suitable contractors • Oversight of the remediation process to ensure compliance and accountability of ongoing warranties • Maintenance and monitoring to the property to ensure early warning of systemic issues.

the cheapest option done quickly.

Whilst the size and scale of property might differ, the fundamental

On consideration however, if a building has failed once, now is the

principles applied to the management of defect remediation are universal.

opportunity to get it right and not repeat costly mistakes previously

Its starts with being clear on your objective and what you expect to

made. Making repairs three times over is obviously not acceptable to any

be achieved at the end of the journey. Therefore it is beneficial to fast

owner therefore mitigation strategies must be implemented to avoid this

forward your thoughts to the end when the remedial work is complete and

situation that unfortunately occurs often. Owners must keep this at the

consider the position you expect to be in at that time.

forefront of their mind at all times and not be persuaded by short term

It is obvious you will expect the problem to be fixed, however it is

gains that can create long term issues, that in some cases present sooner than expected.

important to consider some other key critical items.

Four key critical items

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You need it to be All inclusive

You need it to Conform with the current statutory requirements

You need a Warranty or guarantee

You need it to ensure The extent and costs are balanced with the benefits

• All Inclusive - Has everything been addressed or have we just resolved one issue to create another? Often many adjoining elements need to

Builder

be considered when rectifying one to ensure the work is successful.

Owners corporation

Council

Unexpected additional work during the remediation phase can be extremely costly and can be avoided with proper attention before commencement.

• Conformance – Most owners expect any remediation work will comply

Strata manager

Certifier

to the current regulatory building codes and standards. However what assurance do you have this will occur? Non-conforming work is performed

Expert

regularly in our industry and can impact the performance of products, effectiveness and even the ability to claim insurance if required.

• Warranties – Everyone expects a warranty for work performed however

Insurers/ brokers

Drafting

will you be getting one and how comprehensive is it? Has the contractor excluded warranties, or do they propose to use a product or material that carries a limited warranty? Finding this information out on completion

Structural engineer

of the work, or when the issues begin can be devastating, but can be avoided.

• Cost vs Benefit – “You get what you pay for” is an adage we are all

Access consultant

Fire engineer

familiar with and is especially relevant to building work. Firstly, have you weighed up the options of selecting a product that may have a limited or longer life span, what are the short and long term cost impacts, what are the warranty impacts and most importantly, what assurance do you have the product you chose has been used and installed properly? We have all been sold an inferior product at some stage expecting it was better quality and this is no different and can occur.

Engagement of an expert to guide you through this process is has become more common and is highly recommended when matters become complex

Sedgwick has had a longstanding presence within the Western Australian market for over 30 years therefore understand the unique challenges faced by Strata in the west. Whether your part of a survey strata, a community association or the more traditional high rise strata plan, the challenges in dealing with defect issues and remedial repairs

and significant. An expert will guide you through understanding the

are consistent and always needs a structured approach. Sedgwick’s

problems, examining and identifying what needs to be done to rectify and

connections with strata managers, insurers, and technical specialists

co-ordinate the various stakeholders that can be involved to ensure you

allows us effectively co-ordinate remediation on behalf of owner

achieve the desired outcomes the first-time round, saving both time and cost.

corporations to achieve a successful result both short and long term.

Sedgwick Building Consultancy & Repair Solution Services

Building consultancy

Repair solutions

• 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

1300 735 720 sales@au.sedgwick.com

1300 654 599 sales@au.sedgwick.com 11

Public Liability Insurance Is it a Requirement For Lot Owners?

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Is there any obligation for lot owners to have Public Liability cover Insurance in place for their lot?

If the owner chooses to not take out insurance it is at their own peril.

If a resident is injured on Common Property such as a Garden area and the lot owner has no insurance, can they be sued for damages?

The use is granted by the Council of Owners, but where does the lot owner stand?

The strata corporations insurance covers personal injury & property damage legal claims made against them by other parties including in the above examples (subject to the terms and conditions of the policy).

Is there any obligation for the Council of Owners to request evidence of cover from all lot owners? As far as I can see, this is not addressed in the Act.

If the owner chooses to not take out insurance it is at their own peril. I do not believe the Act gives the strata corporation the power to enforce a requirement for the lot owner or tenant to take out insurance.

There is no specific obligation.

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

READ MORE ON THIS TOPIC HERE

13

APARTMENT OWNERS/BUYERS CONFERENCE

FUTURE PROOFING PERTH’S APARTMENTS This one day event will provide apartment owners and potential owners with a wealth of information to ensure that their apartment lifestyle is easy breezy!

WHEN SATURDAY 30 OCTOBER

Hear from a range of dynamic speakers on how to maximise the latest trends to sustain your apartment and the lifestyle.

TIME 8AM - 4PM

Browse 20 tradeshow booths covering painting, cladding, fire protection, insurance, lifts/elevators, pools, building maintenance, building repair works, strata managers, energy networks, communication networks, apartment projects and so much more!

Early bird ticket price $150 until 30 September then $200 until 29 October.

WHERE PARMELIA HILTON 14 MILL ST, PERTH (parking available at Perth Convention Centre)

Ticket price includes morning/afternoon tea and buffet lunch.

waaa.net.au

#mychoice THANK YOU TO OUR SPONSORS

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REGISTER NOW

OUR SPEAKERS PANEL FUTURE VISIONS Cr Sandy Anghie, Deputy Mayor City of Perth With a successful background in architecture, Sandy is one of the newly elected Councillors advocating for the City of Perth. Sandy will speak about the brand Perth, it’s future and lifestyle as the City focuses on growing its population to 90,000 residents. Sandy will also touch on her architectural recommendations to make apartment living even more enjoyable.

Samantha Reece, Director of WAAA Just completing their 2021 National Apartment Living Research, Samantha will outline what apartment owners love about their apartment, what they would change, their attitude towards strata fees, defects and COVID. Samantha will also touch on what apartment owners would buy next and why housing choice is so important for WA.

FUTURE DESIGNS Dr Josh Byrne, Josh Byrne & Associates Well known gardening and sustainability expert, Josh will provide an insight into the exciting advancements that he is seeing nationally with greening apartments and their buildings. Providing inspiration, Josh will also provide practical tips for every apartment owner to reduce their environmental footprint.

Kai Leben, Interphone After recently completing research with apartment owners, Kai will provide an insight into technology expectations in apartments and the move to ultra-high-speed networks underpinning smart buildings. Hear the consumer trends with smart devices and appliances, and what you can do to get your apartment as smart as possible.

Lance Randall, WINconnect Electrical vehicles, solar panels, energy efficiency – what does that mean to apartment buyers beyond the cost savings? Lance will speak about how buildings can be retrospectively fitted and designed to ensure that they last the distance with their energy consumption and equipped so that owners can monitor and reduce their energy intake on an individual basis, as they see fit.

FUTURE PROOF Shane White, Strata Title Consult Ex Landgate, Shane is a full bottle on the 10 year maintenance plan and will outline just what Council of Owners should be considering when planning for the future. Shane will also outline some of the building maintenance horror stories he has encountered as an example of what not to do!

Catherine Lezer, Strata Community Association President In May 2020 the new Strata Act came into effect but do Council of Owners and apartment owners understand the true impact on their rights and responsibilities? Catherine will run through the key aspects that COO and owners need to be aware of and now implementing.

Dr Armand Zurhaar, Zedcon Scientific Services A sitting member of SAT, Armand has been highly successful in negotiating positive outcomes for apartment owners who are faced with defects and an unco-operative builder. Armand will outline some of his top tips and case studies to demonstrate how being proactive can be to your advantage.

SHINING STARS IN STRATA Panorama – winners of the Enduring Award 2021 Apartment Awards for Excellence Claudia Ven Dijk of ESM Strata and Panorama COO will outline the steps that they have taken to ensure that the 20 year old Panorama has endured the distance and as a result was a recipient of the 2021 Apartment Awards for Excellence. Retaining its property values, this session will deal with Panorama’s sinking funds, planned works and how to ensure that everyone is on the same page when it comes to protecting your building in the long term.

City Towers – winners of the People’s Choice 2021 Apartment Awards for Excellence Karen Richardson of Richardson Strata Management and City Towers COO will discuss how the owners decided to undergo a refurbishment of their foyer areas within this 30 year old building, breathing new life into their development. The COO will also outline how they maintain a happy community within the complex and some of the initiatives they undertook which made them winners in the 2021 Apartment Awards for Excellence.

15

Motions at the AGM Can a motion without notice be put to an AGM?

It is not possible to arrive at an AGM with a motion that you want to put to owners and have a discussion and a vote.

Simple answer is yes but not without 14 daysnotice under the Strata Titles Act 1985.

Any motions which are not set out in the Act (voting for Councillors, budgets etc) come under the category of Special Business and usually require a Special Resolution or Resolution without Dissent vote.

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The Act states that there needs to be a notice period of 14 days so that all owners have prior notice of the motions being discussed and decided at the AGM. Therefore, it is not possible to arrive at an AGM with a motion that you want to put to owners (who are present) and have a discussion and a vote, as the minimum notice period has not been met.

At the conclusion of the meeting, owners often engage in general chat about their scheme under the section “any other business” but decisions can’t be made and ratified – generally delegated to strata council.

If you have missed the deadline for having your item of special business included on the agenda, the options open are to call an EGM, wait for the next AGM or send out a Circular Resolution to all owners.

READ MORE ON THIS TOPIC HERE

Jordan Dinga | Abode Strata abode@abodestrata.com.au

17

Election of the Council of Owners

At our AGM a week ago, owners nominated to be on council and a vote was taken to decide which nominees would fill the 7 positions on council of owners. There were approx 35 votes and strata advised they could not tell those present who was on council. They took away all the paperwork and we are still waiting today one week later to find out who is on the council.

Can you please advise if the outgoing council is still the council of owners (even though I believe the normal procedure is for that council of owners to resign allowing new nominations to be voted on) or does the strata company take over the running of the scheme until the new council is announced?

If the old council are no longer “in charge” can they still make decisions (e.g. the old treasure/ chairman is making financial decisions)

A

The current situation does not appear to be in accordance with the provisions of the Strata Titles Act 1985.

Election of the Council of Owners is well defined in Schedule 1 By-law 5 of the Strata Titles Act 1985. To give an accurate answer, we’d require more details.

I’ve made some assumptions that:

At our AGM a week Q ago, nominees were taken to fill the 7 council of owners positions.

There were approx 35 votes, no decision was reached and we’ve been told it may take a while to work out who is on the Council. Is this a normal part of the process?

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1. A n ordinary resolution was passed to set the number of Council members at seven, as per the Strata Titles Act 1985 Schedule 1 By-law 5(1).

2. T here were seven nominations for the seven Council positions as per the Strata Titles Act 1985 Schedule 1 Bylaw 5(2), therefore a ballot was not needed as per the Strata Titles Act 1985 Schedule 1 By-law 5(4)(b).

In normal circumstances, and as per Section 4(9)(c) of the Strata Titles Act 1985, members of the Council vacate office at the conclusion of each Annual General Meeting if they are not elected or re-elected when the election of the Council of Owners takes place.

The usual order of proceedings at the item on the AGM agenda about the Election of Council of Owners would be: 1. The Chairman declares all positions on the Council of Owners vacant.

2. A motion to determine the number of Council members until the next AGM is voted upon (between 3 & 7) – in this case, I’ve assumed that the number of Councillors was resolved

by Ordinary Resolution to be seven.

3. The chairman receives up to seven nominations for the seven Council positions from those present (either in person or represented by proxy), and then declares those nominees as elected to the Council of Owners as per Strata Titles Act 1985 Schedule 1 By-law 5(4)(a).

What I suspect might have happened is that there were more than seven nominations for Council, and therefore a ballot was (or should have been) held as per the Strata Titles Act 1985 Schedule 1 By-law 4(b).

At that point, it would be prudent and normal to either have a brief adjournment of the meeting so the meeting Chairman can tally the voting as per Strata Titles Act 1985 Schedule 1 Bylaw 5(7), or the Chairman can appoint another person to tally the voting for them and to report the ballot results later in the same meeting.

There is no section of the Act that supports ‘taking away the paperwork’ and declaring a result after the meeting closes.

Being that a new council has yet to be declared, it is likely that the previous Council is still technically in place, but I’d strongly recommend that the author of the query seeks independent legal advice in this instance, as the way the current situation has been described does not appear to be in accordance with the provisions of the Strata Titles Act 1985.

READ MORE ON THIS TOPIC HERE

Andrew Chambers

Chambers Franklyn Strata Management andrew@abbc.net.au

We are a proudly Western Australian firm that advises on strata law.

Our experienced team assists strata managers, council members and individual lot owners with clear and practical advice.

Call us today to find out how we can help you resolve your strata issues.

Contact us Call 9200 4900 or email Elizabeth at admin@civiclegal.com.au civiclegal.com.au

19

What Strata Records can Lot Owners Access?

Q

As a lot owner, what information and strata records am I allowed to access?

I am a Lot Owner, but I am not a part of the strata company. What information and strata records am I allowed to access?

I recently asked my Strata Manager if I could access some information and they responded to me stating “as you are an owner who is not on the Council you are only entitled to formal notices of meetings and information pertaining to matters requiring a vote of the Strata Company. We are not bound to provide anything beyond this.”

Is my Strata Manager correct?

You are permitted to have access to more than meeting and records of A documents votes of the strata company as an owner who is not a formal member of the Council of Owners.

Regarding accessing strata records, as an owner this is governed by sections 107 & 109 of the Strata Titles Act 1985 by way of an application to inspect the records. You can access a copy of the Strata Titles Act 1985 online through Landgate or visit the Western Australian Legislation page and read these sections in more detail.

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Once you have applied for access to the records, these sections must be complied with. What defines strata records is governed and explained by legislation under the Strata Titles Regulations 2019 and Sections 101 and 104 of the Strata Titles Act 1985. This table is an extract from Section 83 in the Strata Title Regulations 2019 showing the full list of required documents that a strata company must keep as its ‘records’.

83. Period in which records must be retained A document that a strata company is required to make or keep under a section specified in the Table under the heading “Type of document” must be kept for the period specified in the Table under the heading “Retention period” next to the document concerned.

[Refer to table on the right] As an owner, you are permitted to have access to anything listed in the table. The table does refer you back to certain sections within the Strata Titles Act 1985 again, such as Sections 104 and 101 in regards to clarifying what the definitions of the listed documents mean.

Whilst it may seem a bit daunting to download both the Regulations and the Strata Titles Act documents defining the legislation, it’s a relatively easy exercise once you know where to look. The legislation is easy to understand in most cases quite short and brief in each section. If you have any difficulty or still find you have a lack of understanding, then it’s best to engage a Records Inspector or a Strata Consultant to assist you in the process.

In summary, you are permitted to have access to more than meeting documents and records of votes of the strata company as an owner who is not a formal member of the Council of Owners. The legislation does allow for this.

READ MORE ON THIS TOPIC HERE

Kylie Nelson | Eyeon Property Inspections kylie.nelson@eyeon.com.au

Type of document

Retention period

Section 104(1)(b)(i) (minutes of general meetings and meetings of council)

7 years

Section 104(1)(b)(ii) (records of resolutions and decisions of council)

20 years for special resolutions, unanimous resolutions and resolutions without dissent; 7 years in any other case

Section 104(1)(c)(i) (records and statements of account made or kept under section 101)

7 years

Section 104(1)(c)(ii) (notices of general meetings and meetings of council)

7 years

Section 104(1)(c)(iii) (notices of proposed resolutions 7 years and material submitted to members in connection with proposed resolutions) Section 104(1)(c)(iv) (notices of disclosures made under section 79, 145(2) or 147)

7 years

Section 104(1)(c)(v) (all correspondence, other notices 7 years and orders sent or received by the strata company or its council) Section 104(1)(c)(vi) (each lease accepted under section 92 and any instrument of surrender of such a lease)

7 years beginning the day after the lease ends

Section 104(1)(c)(vii) (a copy of each contract entered into by the strata company and any variation, extension or termination of such a contract)

20 years for an insurance contract, or an infrastructure contract for a common property (utility and sustainability infrastructure) easement, including any variation, extension or termination of such a contract 7 years in any other case;

Section 104(1)(c)(viii) (each lease, licence or other document granting a special privilege over the common property (other than exclusive use by‑laws))

7 years beginning the day after the lease, licence or other document granting a special privilege ends

Section 104(1)(c)(ix) (each key document received by the strata company)

The life of the scheme (except where a shorter period is specified in relation to that document in this Table)

Section 104(1)(c)(x) (each document kept or received under section 63(8) or (9))

The life of the scheme

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21

EGMs, Motions, Meeting Times & Decision Making Once a request has been submitted for an EGM, does a meeting date need to be set within 21 days?

The other type of General Meeting being an Extraordinary General Meeting (EGM) which may either be “convened by the council of the strata company as the council thinks fit” section 128 (2)(a) of the Strata Titles Act 1985.

Once a request has been submitted for an EGM, does a meeting date need to be set within 21 days? We need urgent motions to be passed at the EGM.

It might be that a group of owners are desirous of wanting an extraordinary general meeting to be convened. In this instance the “owners of 25% or more of the unit entitlements” may submit a written request to the strata council to convene a meeting.

Q

Alternatively, can I put up a Notice for a motion by resolution (similar to a petition) distributed to all owners electronically with a voting period of 14 days? Would any resolution from that motion be binding on the strata company?

A

The submission of a written request to call an EGM is no guarantee that the strata council will approve and authorise a general meeting to take place.

I will give you an overall explanation to your enquiry: There are two types of General Meeting, these being an Annual General Meeting (AGM) which must occur not more than 15 months after its previous general meeting. section 127 (1) of the Strata Titles Act 1985.

22 www.lookupstrata.com.au

The submission of a written request to call an EGM is no guarantee that the strata council will approve and authorise a general meeting to take place.

Further reading of section 128 (3) of the Strata Titles Act 1985 indicates that if the strata council does not take steps to organise the EGM within 21 days, then the owners making the request or any of them holding more than 50% of the unit entitlements, take steps to convene the meeting.

So, this section gives the strata council a period of 21 days to send out the required notice and agenda for the EGM; if they fail to do so then the owners making the request can convene the meeting in the same manner as meetings are to be convened by the council.

When reading section 128(5) of the Strata Titles Act 1985, a meeting that is requested to be convened under section 123 (3) of the Strata

Titles Act 1985 “must not be held after the expiration of the period of 3 months starting on the day the request was made”.

The Motion may require a certain standard of resolution – Unanimous, Resolution Without Dissent, Special or Ordinary resolution.

In summary:

You would be unable to put up any motions by meeting notice or “circular” if you have not followed through with the requirements of the Act to requisition the strata council to convene the EGM in the first place.

The strata council, even if requested to convene an EGM, have a period of 21 days to decide whether or not to convene an EGM. If they do not send out notices within the 21 day period, then the requisitionists may convene the EGM in the same manner as the strata council would have been required to do so.

The requisitioned EGM must be convened within a period of 3 months from the date of the request.

The answer you have previously been given “The Council have to set the date within 21 days from the request, and the meeting has to be held within 3 months from the request” is correct.

You have not expressed the nature of the motions which you say are of an urgent nature.

If the request is so urgent then surely you would be able to raise the numbers to get 50% of the owners to attend or respond if a meeting was called.

Failure to follow the meeting requirements as laid down in the Act would render any resolutions invalid and not binding on any owner or the strata company.

The voting period for some resolutions requires a period of 28 days to elapse.

Depending on the motion and resolution required to be obtained, some owners may not be able to vote if they are unfinancial (section 123 of the Strata Titles Act 1985).

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

The nature of the motion has not been specified and this also has bearing on what the owners are going to be voting on.

23

Staged Development What are the Legislative Requirements for a 10 Year Plan?

When do Q we need to complete the 10 Year Plan for a staged development that won’t be completed for another year?

I look after a Strata Complex of 157 units. 57 lots are not yet completed in the development.

What is the legal requirement to finalise the 10 Year Plan?

Would I be expected to carry out the 10 year plan now based on lots completed, and then carry out a second plan in 12 months when the development is complete? Or would it be better to wait 12 months and carry out a single complete report for all stages of the development?

If we wait until the development is complete, would we be in contravention of the Act by not having the 10 year plan in place within 12 months of the reform?

As a designated A strata company (having more than 10 lots), you must have a 10 year plan in place by the regulatory deadline.

Working out the legislative requirements for a 10 year plan at a staged development is surprisingly complex.

24 www.lookupstrata.com.au

Answering your question is the easy part of the process. As a designated strata company (having more than 10 lots), you must have a 10 year plan in place by the regulatory deadline.

• A strata company automatically comes into existence when the first stage of the development is registered.

• Once in existence, the strata company must comply with all the relevant sections of the Act and the Regulations.

• Consequentially, ‣ a new designated strata company must submit their first 10-year plan for approval at the first annual general meeting [section 77(7) of the Strata Title (General) Regulations 2019]; and ‣ a pre-existing designated strata company must submit their first 10-year plan for approval no later than the first AGM occurring after 1 May 2021.

• Annual budgets must be prepared and approved “taking into account … the 10 year plan for the reserve fund” [section 102 of the Strata Titles Act 1985].

• The 10 year plan must be revised “at least once in every 5 years” [section 100(2A)(b) of the Strata Titles Act 1985].

That a strata complex is not fully developed does not vary these legislative requirements.

There are practical reasons why this must be the case.

It is not unusual for large developments to be staged over three or more years. Not requiring the 10 year plan until the end of the construction period would significantly undermine the consumer protection which 10 year plans are designed to provide.

Up to this point in my answer, the application of the Act and Regulations is very black and white. Interpreting the legislative requirements for future stage infrastructure is much more interesting.

1. D oes the Act require me to update the 10 year plan following major infrastructure changes? section 100(2A)(b) of the Strata Titles Act 1985 says that the strata company must ensure: “that the 10 year plan is revised at least once in each 5 years and that, when revised, the plan is extended to cover the 10 years following the revision”.

Nothing in the Act or Regulations expressly states that the 10 year plan must be updated before the end of the 5th year if there are major infrastructure changes.

However, using a substantially out-of-date 10 year plan as the basis of setting your budget

would be inconsistent with the legislation’s intent. Hopefully, we will get further Landgate advice about this point in the future.

2. Can the initial 10 year plan include infrastructure in future development stages? section 100(2A)(a)(i) of the Strata Titles Act 1985 says that the 10 year plan must set out: “the common property and personal property of the strata company that is anticipated to require maintenance, repair, renewal or replacement (other than of a routine nature) in the period covered by the plan”.

If your strata complex is close to completion, it is possible major repairs and replacements associated with the future stages can be predicted and reasonably described as “anticipated”.

Sections 53(6) to (8) of the Strata Title (General) Regulations 2019 require the developer to include a copy of the architectural plans and specifications for future construction stages in the scheme’s by-laws. If you have a good relationship with the developer, they may also provide up-todate architectural plans on a provisional basis.

A quantity surveyor with extensive experience preparing 10 year plans can use these documents to estimate future stage costs as part of your initial 10 year plan. We do this regularly for developers who want to market their development offthe-plan and need to provide preliminary levy guides.

You just need to be mindful that the staged addition of new lots must be reflected in both the future cost forecasts and the calculation of future levy contributions.

We recommend that the 10 year plan be reviewed at the end of construction and updated to reflect any changes in the final construction design or timing. However, unless there have been substantial variations, leaving that review until the end of the standard 5 year period may not significantly change the recommended annual levies.

I can see no reason to question the compliance of a 10 year plan which includes reasonably anticipated future stage expenses, provided it satisfies sections 77(1)(g) and 77(6) of the Strata Title (General) Regulations 2019 by clearly identifying the costs relate to the future stages and stating the method used in their estimation.

I’ll leave it up to the lawyers to argue the technical case about exactly when future stage expenses become reasonably anticipated and if (or when) section 100(2A)(a)(i) makes their inclusion mandatory.

As is typically the case, the best option for your

READ MORE ON THIS TOPIC HERE

strata complex will need to balance technical compliance with practical application.

Therefore, my advice for your scheme is: 1. C onfirm with the developer that the final stages will be constructed after the last date that section 127 of the Strata Titles Act 1985 permits you to hold the AGM. 2. C onsider the availability and reliability of information about the future construction stages.

3. I f reliable information is available, prepare a 10 year plan that contains all the expenses anticipated to occur during the plan period, including those for future stages.

Then update the plan after all the stages are constructed, or at the end of 5 years, depending on which comes first.

4. I f reliable information is not available, prepare an initial 10 year plan that covers the current infrastructure. Then update the 10 year plan after each new stage is constructed.

Kaylene Arkcoll | Leary & Partners enquiries@leary.com.au

25

What are Your Rights to Stop a Neighbour From Smoking Q

I can’t have my doors or windows open because of my neighbour who smokes.

What are my rights?

My neighbour smokes right on the boundary of our ground level units and right next to my washing. I can’t have my doors or windows open because of this smell.

What are my rights? There are plenty of other spots within their lot they could smoke in that wouldn’t affect anyone.

It may be worth seeking A feedback from the other owners in the complex to see whether they would be interested in having a smoking bylaw drafted to help create more specific regulation on smoking in the scheme.

Section 83 of the Strata Titles Act 1985 requires owners or occupiers of a lot must not use, or permit the use of, the lot or common property of the strata titles scheme in a way that interferes unreasonably with the use or enjoyment of another lot or the common property by a person who is lawfully on the lot or common property.

Compliance is always a better approach than enforcement, so we recommend in the first 26 www.lookupstrata.com.au

instance it’s often a good idea to approach the offending resident from a place of respect, as they may not be aware of the impact they are having. You may be able to come to an arrangement that suits both of you for example.

Failing that, or if you feel uncomfortable with that process, you should contact your Strata Manager and/or the Council of the Strata Company. They will be able to assess the issue and decide on the best approach to help resolve the problem. If your scheme does not specifically have a bylaw that governs or regulates smoking and second-hand smoke, then you will likely be relying on Section 83 to try to manage the issue. The Strata Manager and/or the Council of the Strata Company would seek the resident’s compliance by raising the issue with them and opening a discourse with them to try and resolve the issue.

It may be worth seeking feedback from the other owners in the complex to see whether they would be interested in having a smoking bylaw drafted to help create more specific

regulation on smoking in the scheme. A bylaw could prohibit smoking on common property or control where smoking may take place on Common Property, or it could be just in relation to smoke drift. A smoking bylaw would help create awareness and clarity on what the owners of the scheme feel are reasonable. This may be followed up as appropriate with nosmoking signs in certain areas, etc.

It is important to recognise whilst the Strata Company can have more direct control on what people do on Common Property, they can’t outright ban behaviour within lots (provided it’s not disruptive). Therefore, working towards an amicable solution that allows all residents to live harmoniously together should be the outcome that the Strata Company seeks.

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

27

Renovation Approval Q

What must be included in a lot owner’s renovation request submission for the next AGM?

We are a single tier complex of 7 units. A lot owner has requested permission to add a structure that will be attached to the back of their unit.

What must they include in the submission for the next AGM? We wish to ensure that, if and when the addition is approved, the correct information is included in the minutes. We are concerned about how to record that the request has been approved for both now and in the future in case of any potential issues that arise due to the work.

A

An application for alteration to a lot must set out certain details that are prescribed under the general regulations.

Given that your question references the addition of a structure to the back of the unit it is important to determine if the new structure is being erected on the lot or common property.

Erection of a structure on the common property for the sole use of a single lot is not advisable and potentially not compliant under the Strata Titles Act 1985 (STA1985).

28 www.lookupstrata.com.au

Section 86 of the STA1985 states that “structural alteration of a lot means — (a) the erection of a structure within the lot; or (b) an alteration of a structural kind to, or extension of, a structure within the lot; structure includes anything classified as a structure by the regulations”.

Section 73 of the General Regulations defines a structure as “… any dwelling, shop, factory, commercial premises, garage, carport, shed or other building or improvement (whether free standing or annexed to or incorporated with any existing building on the lot) — (a) the construction or erection of which is required to be approved by the local government or any other authority; or (b) the area of which is to be taken into account for the purposes of determining the plot ratio restrictions or open space requirements for the lot.”

Given your complex is a 7 lot scheme (assuming it is strata title and not survey strata) the alteration would require prior approval expressed by resolution without dissent (no vote against). Alternatively, prior written approval from each lot which are unconditional or contain the same conditions can be served on the strata company to gain approval.

A vote on the proposal must be cast against or for the resolution. Any vote against must state the grounds for the vote against and must be one of the grounds contained within section 87(5) which states:

a. that the carrying out of the proposal will breach the plot ratio restrictions or open space requirements for the lot; or b. in the case of a lot that is not a vacant lot, that the carrying out of the proposal — i. will result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development; or ii. may affect the structural soundness of a building; or iii. may interfere with a statutory easement. iv. that the carrying out of the proposal will contravene a specified by-law or specified by-laws of the strata company; v. t hat the carrying out of the proposal may interfere with a short form easement or restrictive covenant or any other easement or covenant affecting the parcel that is shown on the scheme plan or registered against the parcel.

An application for alteration to a lot must set out certain details that are prescribed under regulation 75 the general regulations.

These are: 75. Application for approval of structural alteration 1. For the purposes of section 89(1), the following information is prescribed — a. plans and specifications for the structural alteration; b. the additional information prescribed for the type of structural alteration concerned by this regulation.

2. The following additional information is prescribed for a structural alteration of a lot on a strata plan — a. the plot ratio restrictions and open space requirements in relation to the parcel; b. the pro rata entitlements of the lot (calculated as provided for by regulations 7 and 8);

c. i f the application is approved, the area of the structure, including the area of all existing and proposed structures to be taken into account for the purposes of calculating the plot ratio restrictions and open space requirements; d. whether or not the carrying out of the proposal will breach the pro rata entitlements of the lot and, if it does, the percentage and area by which the pro rata entitlements of the lot is exceeded; e. t he location and dimensions of the proposed structure upon its completion in relation to any existing structure on the lot or to the boundaries of the lot; f. any contravention of the by‑laws of the strata company, whether of a permanent or temporary nature, which is likely to occur during or as a result of the erection, alteration or extension of the structure, and any proposed manner of dealing with that contravention; g. any likely interruption to or interference with any statutory easement, short form easement or restrictive covenant or any other easement or restrictive covenant affecting the parcel that is shown on the scheme plan or registered against the parcel, whether of a permanent or temporary nature; h. whether the structural alteration of the lot changes the boundaries of the lot and whether the applicant has sought advice from a licensed surveyor about the effect of the structural alteration.

The process required for handling an application is also very stringent and imperative to the legitimacy of the process. For example, an application received must be open for voting within 35 days of being received. The chairperson of the meeting that is considering the application must read the prescribed statement prior to the alteration being voted on. The prescribed statement is contained in the general regulations and amongst other things outlines the valid reasons for a vote against the proposed alterations.

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Luke Downie | Realmark ldownie@realmark.com.au

29

Solving Visitor Parking Issues In a Perth City Apartment Block

Q

In our city apartment building, even though we have a visitor parking bylaw and arrangement with the local council, we still experience ongoing problems with both residents and outsiders using the parking.

What else can we do?

I reside in an apartment near the city. It is a 9 level building that has 40 units and is 50% owner-occupied. I am a member of the Council of Owners.

Each unit has a dedicated parking bay.

The building has four VISITOR PARKING bays.

Our building rules and guidelines specify who may use these bays and for how long.

However, these rules are not included in the by-laws. The only reference in the by-laws is the clause that reads as follows: • A proprietor, resident, or occupier of a lot shall not stand or park any motor vehicle 30 www.lookupstrata.com.au

or other vehicle upon common property except with the written approval of the strata company.

The area has a notice clearly displayed and referencing the City Council Law under which the parking is controlled.

We experience ongoing problems with both owners and tenants parking in the area. We also have issues with outsiders parking in the bays for extended periods.

The sentiment of the Chairperson of the Council of Owners is that there is very little that can be done. The Chair believes that whilst it is bad faith for an owner or tenant to park in these areas, they are legally entitled to do so.

It has been suggested that bollards be erected and controlled by the full-time caretaker, but this is onerous.

It has further been suggested that the bays be leased to residents on a rotational basis for six months and that they are charged a monthly fee for the use of the bays. These funds would be paid to the Strata Reserve Fund.

• Are there any formal avenues that can be followed to prevent the improper use of these bays?

• Are residents permitted to use these bays?

• Would the Strata be allowed to lease these bays to residents on a rotational basis and charge for the use?

A

You should work with the owners and the residents around the policing of the visitor bays and make sure it is clearly explained to them.

The first question, ‘Are there any formal avenues that can be followed to prevent the improper use of these bays?’ There is already a bylaw that says that you can’t park on the common property or obstruct common property. It is a very simple bylaw and expanding on that bylaw to have a more detailed car parking requirement in the use of the visitor base would be beneficial.

residents aren’t permitted to park in the bay.

You do need to have these visitor bays for when you have guests come around and visit you within your lot and you need somewhere for them to park so you wouldn’t want them taken up by residents parking there full time.

The last question is ‘Would the Strata be allowed to lease these bays to residents on a rotational basis and charge for the use?’. By and large, in a lot of schemes, the car parking bays are actually common property so a lot of schemes do actually lease their car parking bays. I would suggest that taking out the visitor bays to the scheme would be detrimental to the visitors coming to the scheme and I would encourage them not to lease out the visitor car parking bays and take them out of use for those people coming to visit them.

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Scott Bellerby | B Stata

scott.bellerby@bstratawa.com.au

If they’ve entered into an agreement with the local council, it depends on what local council it is. Your inner city localities generally allow for the ability to put up the signs and then call a ranger to the site to issue an infringement. We find that that’s the best way to manage it. You should work with the owners and the residents around that policing of the bays and make sure it is clearly explained to them.

The strata company can restrict the use of the base. It is intended that they’re for visitors, not for permanent residents to park in. I think being a little bit more engaged with the local council around policing the bays would be beneficial.

The next question is ‘Are residents permitted to use these bays?’. When the schemes are approved there’s a requirement, probably under the development application and when the development approval is issued, that the scheme has visitor car parking bays. The removal of those car parking bays for the visitors would potentially require a development application to the local council, and it would be intended that those bays are exclusively designated for visitors. I would say that the 31

32 www.lookupstrata.com.au

33

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Ai Odour Control Systems

Actualise your facilities’ potential P: 1300 378 388 W: https://www.aiodourcontrolsystems.com.au/ E: info@aiodourcontrolsystems.com.au

CLOTHESLINES Lifestyle Clotheslines

Clothesline and washing line supplier & installer P: 13 0079 8779 W: https://www.lifestyleclotheslines.com.au/ E: admin@lifestyleclotheslines.com.au

ELECTRICAL Energy On Pty Ltd

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

HANDYMAN Complete Projects WA

Quality Construction, Economy, Hard Work and Integrity

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

DELIVERY & COLLECTION SERVICES Groundfloor™

Australian parcel, mail, and refrigerated lockers P: 03 9982 4462 W: https://groundfloordelivery.com/ E: ask@groundfloordelivery.com

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LIFTS & ELEVATORS

PLUMBING

Equity Elevator Consultants

Tunnel Vision (WA) Pty Ltd

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

Australia’s Vertical Transportation Consultants P: 0417 784 245 W: https://www.ilcpl.com.au/ E: bfulcher@ilcpl.com.au

DEFECT RESTORATION Metrowest Service Pty Ltd

Single source solution for all maintenance needs W: https://metrowest.com.au/ E: info@metrowest.com.au

FINANCE Strata Guardian

Fight low returns and rising levies with us.

P: 1300 482 736 W: https://www.strataguardian.com/ E: contact@strataguardian.com

Blocked Drain and Nuflow Pipe Relining Specialists P: 08 9417 1563 W: https://www.tunnelvision.com.au/ E: operations@tunnlevision.com.au

PAINTING Dulux Property Services

Total Building Maintenance & Remedial Solutions P: 0434 834 799 W: https://www.duluxconstructionsolutions.com.au/ E: propertyservice@dulux.com.au

Calibre Coatings

Delivering Excellence in Painting Services P: 08 9331 5553 W: https://www.calibrecoatings.com.au/ E: wa@calibrecoatings.com.au

Higgins Coatings Pty Ltd

Specialist painters in the strata industry P: 1300 HIGGINS W: https://www.higgins.com.au/ E: info@higgins.com.au

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

We want to share your strata stories with the LookUpStrata community.

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?

• Have you received a response back from one of the LookUpStrata professionals that has positively impacted you or your complex?

• Have you made a change to improve sustainability?

• You could even share a photo of the view from you balcony or catching up with neighbours for a coffee.

If you would like to share your strata scheme story with the LookUpStrata community, Please send your story and photos to:

administration@lookupstrata.com.au Disclaimer: If you send your strata story to

administration@lookupstrata.com.au,

you are agreeing to have your story published on the LookUpStrata platform or via social media. We must have written permission from each individual shown in the photo. Submissions may be refused for any reason.

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