August Newsletter 2021
LATEST STRATA DEVELOPMENTS
FOR NEW SOUTH WALES
Dear Members,
The Strata Schemes Management Amendment (Sustainability Infrastructure) Act, 2021 No 1 (NSW) (the “Amendment Act”) has introduced important amendments to the Strata Schemes Management Act, 2015 (NSW)(the “Act”).
Keeping of animals
You may have seen the media coverage of the landmark NSW Court of Appeal decision in Cooper v The Owners – Strata Plan No. 58068 [2020] NSWCA 250 (“Cooper”) which held that by-laws containing blanket prohibitions on pets were harsh, unconscionable or oppressive – as a result, the now famous dog “Angus” is permitted to stay at Horizon, a strata building in Darlinghurst. Importantly, the Act has now been amended to enshrine these provisions into the Act and take effect on 24th August 2021.
Interestingly, it will now be deemed “reasonable” to keep an animal unless the keeping of the animal “unreasonably” interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property.
The amendments have far-reaching implications for an owners corporation, as a decision to refuse a pet application pursuant to existing by-laws may now be subject to challenge. Consideration of pet applications will now be time sensitive – owners corporation’s should expeditiously consider such applications because failure to advise of the outcome of the application within a “reasonable” period of time, is now deemed approval to keep the animal.
We recommend that all owners corporations review their pet keeping position – we would be pleased to assist you in this regard to ensure your keeping of pets by-laws comply with the new Section 137B”.
Environmentally friendly amendments
Not only is it now easier for occupiers to keep animals, the Amendment Act also makes it easier to install “sustainability infrastructure” on the common property.
“Sustainability infrastructure” is essentially any change to the common property:
- to reduce the consumption of energy or water or to increase the efficiency of its consumption
- to reduce or prevent pollution
- to reduce the amount of waste sent to landfill
- to increase the recovery or recycling of materials
- to reduce greenhouse gas emissions, and
- to facilitate the use of sustainable forms of transport (eg installing electric vehicle charging stations).
A new concept of the “sustainability infrastructure resolution” passes as a simple majority vote, so for example, an owner wishing to install solar panels will only need a majority votes as opposed to a “special resolution”.
Miscellaneous amendments
The Amendment Act also:
- NCAT applications – imposes on an owners corporation the responsibility for the service of notices regarding applications to NCAT
- Civil penalties – enables applications to NCAT for a civil penalty up to $5,500 against a person who has contravened an order of the Tribunal
- Proxies – permits a person who owns more than one lot in a strata scheme to nominate one individual to act as a proxy for all the lots owned by that owner
- Proxies – provides that a nomination of a proxy for a meeting is not rendered invalid if the meeting is adjourned
- Secret ballots – prevents records of secret ballots from being disclosed as part of strata inspection of the books and records of the owners corporation
- By-laws to tenants – removes the duplicated requirement to give a tenant a copy of the by-laws for a strata scheme
Further extension of strata and community lands COVID-19 Regulations
Strata Community Australia (“SCA”) (NSW) has confirmed with the NSW State Government that the emergency regulation permitting strata meetings to be held remotely will be reinstated from Wednesday 21st July 2021.
Stay Safe and Informed!
Regards,
Leanne Habib
CEO
NSW: Q&A Proxies and Voting Rules for Owners Corporation Meetings
Question: My wife and I are co-owners. Do we really have to submit proxy forms for the other when only one of us attends a meeting?
My wife and I are co-owners. My reading of the act is that if one of us is not at the meeting then the other speaks and votes for us. The management says no, I must give her written proxy each time I am not there because my name is written first in the ownership document. Is that right? we are equal owners.
Answer: There are proxy rules in the case of co-ownership.
In case of co-ownership, the proxy may be one of the co-owners (or someone else) OR if no other co-owners show up, the co-owner who actually showed up OR if more than one co-owner turns up, they all consent to one of them being proxy OR if they don’t consent, the first named on the strata roll.
NSW: Q&A Which ByLaws Apply to Our Strata Scheme?
Question: What are the requirements for owning and or residing in an over 55s strata property? Does the owner or all residents need to be over 55 to live in a retirement village?
Our Strata is an over 55s or invalid property. Can a purchaser be stopped from buying a lot in a retirement village if they are unable to prove they are 55+ years old and/or permanently invalid?
Finally, what constitutes invalid under the Strata legislation?
Answer: It’s not the purchaser who needs to be over 55, it’s actually the resident.
It’s not the purchaser who (needs to be over 55) [https://www.lookupstrata.com.au/nsw-are-age-restriction-rules-valid/], it’s actually the resident. So I could actually purchase a property and have my mother who’s over 55 reside in the property. The deciding factor is on the resident as opposed to the purchaser. So the purchase can be any age, it’s just the resident that presides.
If you’re a resident and you’re 55 and you have a relative such as a dependent child, an aunt, a stepfather, etc, living with you and they are under 55, they can also occupy the property with you. The main resident needs to comply and be over 55.
What determines whether you have the disability etc, to actually reside? It would come down to medical reasons. The retirement village act would have more information about that.
For me, in short, it would be having some medical certificate to confirm that you do have a disability or a condition to ensure that you do warrant what they define as acceptable for that scheme.
NSW: Q&A Positions on the Strata Committee
Question: Is the chairperson elected before each meeting?
Answer: If you haven’t elected a chairperson, secretary and treasurer, to remain in office for the term of their appointment, you can elect a chairperson for each meeting.
At a general meeting, you elect your strata committee, but you don’t elect the office bearers position. This is done at a committee meeting. Generally, at your first committee meeting, immediately after the annual general meeting or shortly after, you would elected office bearers. If you’ve elected office bearers, they would hold those positions until they are removed from the position.
If you haven’t elected a chairperson, secretary and treasurer, to remain in office for the term of their appointment, which is generally up until the next Annual General Meeting, then you can elect a chairperson for each meeting. It’s highly recommended that you elect these office bearer’s positions to remain in place up until the next election being at your next annual general meeting. I think it’s important to have office bearers positions. Even though you have a managing agent in most cases, there are still schemes that are self managed.
When you have a managing agent that is appointed, you still need to have members of your committee, have those functions and duties in case you need to do something where you don’t require your managing agent. Or in fact, you might be wanting to terminate the services of the managing agent. So I think it’s critical that as office bearers, you hold those positions as well so that you can be independent in calling a meeting if you need to, issuing correspondence to owners if you need to. I think it’s critical. That’s why at all our annual general meetings, we ensure, immediately after an AGM, we elected office bearers out of committee.
I’d highly recommend that you do elect office bearers positions, to be for the term of their appointment, by election as opposed to randomly at each meeting when it’s held.
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