Strata Schemes Management Amendment Act 2002 (NSW)
An Act to amend the Strata Schemes Management Act 1996 with respect to caretakers and caretaker agreements, voting at meetings, and the powers of an owners corporation during the initial period; and for other purposes.
This Act is the Strata Schemes Management Amendment Act 2002.
This Act commences on a day or days to be appointed by proclamation.
The Strata Schemes Management Act 1996 is amended as set out in Schedule 1.
(Section 3)
Insert at the end of the section:
However, Parts 3, 4 and 4A of Chapter 2, Chapter 3 (sections 63–65 excepted) and Chapter 4 do not apply to or in respect of a strata scheme if the Crown is the owner of all lots in the scheme.
The Crown includes statutory bodies representing the Crown, such as the New South Wales Land and Housing Corporation.
Omit “either or both” from section 9. Insert instead “any one or more”.
Insert after section 9 (b):
a caretaker appointed in accordance with Part 4A.
Omit “However, where a strata managing agent is appointed the appointment must be in accordance with Part 4.” from the note to section 13 (2).
Insert instead “For example, a caretaker is required to be appointed under Part 4A.”.
Insert after Part 4 of Chapter 2:
A caretaker is a person who is entitled to exclusive possession (whether or not jointly with another person or other persons) of a lot or common property and assists in exercising any one or more of the following functions of the owners corporation for the strata scheme concerned:
(a) managing common property,
(b) controlling the use of common property by persons other than the owners and occupiers of lots,
(c) maintaining and repairing common property.
However, a person is not a caretaker if the person exercises those functions only on a voluntary or casual basis or as a member of the executive committee.
A person may be both a caretaker and an on-site residential property manager.
A caretaker is required to be appointed by an instrument in writing (a
(a) by the original owner, if executed before the strata scheme commenced, or
(b) under the authority of a resolution passed at a general meeting of the owners corporation of the strata scheme concerned, if executed after the strata scheme commenced.
Unless it expires or otherwise ceases to have effect earlier, a caretaker agreement (including any additional term under any option to renew it) expires:
(a) at the conclusion of the first annual general meeting of the owners corporation, if the agreement was executed by the original owner, or
(b) when 10 years have expired after it commenced to authorise the caretaker to act under it, in any other case.
The functions of a caretaker under a caretaker agreement may be transferred to another person only with the approval of the owners corporation. A person to whom those functions are transferred is taken to be appointed as a caretaker by the caretaker agreement.
An owners corporation may terminate a caretaker agreement in accordance with its terms, and may approve a transfer of the functions of a caretaker, if authorised by a resolution at a general meeting of the owners corporation.
A caretaker may, in accordance with the caretaker agreement appointing the caretaker, assist in exercising one or more of the functions of the owners corporation of managing and controlling the use of common property (otherwise than by the owners or occupiers of lots) and of maintaining and repairing common property.
However, the owners corporation may continue to exercise all or any of those functions, subject to the caretaker agreement.
A person is not a strata managing agent for the purposes of this or any other Act only because the person is a caretaker acting in accordance with a caretaker agreement.
Omit section 61 (1). Insert instead:
An owners corporation has, for the benefit of the owners:
(a) the management and control of the use of the common property of the strata scheme concerned, and
(b) the administration of the strata scheme concerned.
Insert after section 108 (3) (h):
if a caretaker agreement is in force or has been entered into but has not yet commenced, a copy of the caretaker agreement.
Insert “and caretaker” after “agent” in section 109 (4).
Omit “to hold office as such” from section 113 (1) (c).
Insert instead “or a caretaker or other person to assist it in the management or control of use of the common property, or the maintenance or repair of the common property,”.
Insert after section 183:
The Tribunal may make an order with respect to a caretaker agreement:
(a) terminating the agreement, or
(b) requiring the payment of compensation by a party to the agreement, or
(c) varying the term or varying or declaring void any of the conditions of the agreement, or
(d) confirming the term or any of the conditions of the agreement, or
(e) dismissing the application.
An order under this section may be made only on an application made by the owners corporation for the strata scheme concerned on one or more of the following grounds:
(a) that the caretaker has refused or failed to perform the agreement or has performed it unsatisfactorily,
(b) that charges payable by the owners corporation under the agreement for the services of the caretaker are unfair,
(c) that the agreement is, in the circumstances of the case, otherwise harsh, oppressive, unconscionable or unreasonable.
Any amount ordered to be paid under this section may be recovered as a debt.
Insert “on a motion that relates to insurance, budgeting or fixing of a levy, that will require expenditure above the prescribed amount by the owners corporation or on any matter that requires a special or unanimous resolution” after “a vote” in clause 7 (1).
Insert “However, a priority vote has no effect unless at least 2 days’ written notice of intention to exercise the priority vote at the particular meeting has been given to the owner of the lot.” at the end of clause 10 (9).
Omit clause 11 (4). Insert instead:
An instrument appointing a proxy has effect for the period commencing with the day on which it takes effect and ending with the later of the first anniversary of that day and the conclusion of the second annual general meeting held after that day, unless it is sooner revoked or a shorter period is provided by the instrument.
Insert after clause 11 (7):
A vote by a proxy who is a caretaker, an on-site residential property manager or a strata managing agent is invalid if it would obtain or assist in obtaining a pecuniary interest for, or confer or assist in conferring any other material benefit on, the proxy.
For the purposes of subclause (7A),
(a) an extension of the term or an additional term of appointment of the proxy as caretaker, on-site residential property manager or strata managing agent,
(b) an increase in the remuneration of the proxy,
(c) a decision of the owners corporation not to proceed with, to withdraw, to delay, to compromise or to settle litigation or other legal proceedings relating to the proxy,
(d) any other decision of the owners corporation that affects litigation or other legal proceedings relating to the proxy.
Insert at the end of clause 1 (1):
Strata Schemes Management Amendment Act 2002
Insert after Part 3 of Schedule 4:
Any agreement that was in force immediately before the commencement of Part 4A of Chapter 2 that, if entered into after that commencement, would be a caretaker agreement is taken to be a caretaker agreement appointing a caretaker.
However:
(a) the caretaker is not required to be or have been entitled to exclusive possession of a lot or common property either while the agreement is in force or as a precondition to entering into the agreement, and
(b) section 40B (2) does not apply to such an agreement, and
(c) an application for an order under section 183A may not be made with respect to such an agreement on the ground that the period for which the agreement is in force is harsh, oppressive, unconscionable or unreasonable.
In this clause,
Clause 11 (4) of Schedule 2, as amended by the amending Act, extends to an instrument appointing a proxy that was in force immediately before that subclause was amended by that Act.
Clause 11 (7A) and (7B) of Schedule 2, as inserted by the amending Act, extend to a proxy that was in force immediately before those subclauses were inserted by that Act.
Insert in alphabetical order in Part 1:
0
0
0