A number of changes introduced with the commencement of the Strata Schemes Management Act 2015 (SSMA 2015) assist in relation to new methods for participation in meetings, including:

• Attending meetings from a remote location by electronic means, e.g. online video conferencing.
• Making decisions prior to a meeting by pre-meeting electronic voting, either by electronic ballots papers or voting website.

There also remains the ability to have attendance by proxies made out to employees of the managing agent with express directions on how to vote.

Regulation 14(1)(a) of the Strata Schemes Management Regulations 2016 provides that an owners corporation or strata committee can resolve to conduct a meeting on the basis that participants may participate and vote by electronic means, such as video conferencing, teleconference or email.

Clause 28 of Schedule 1 of the SSMA 2015 states in relation to general meetings:

28 Manner of voting

(1) A vote at a meeting by a person entitled to vote or by a proxy must be cast in person unless the owners corporation, by resolution passed at a general meeting, determines that a vote may be cast by some other specified means.

Clause 10 of Schedule 2 of the SSMA 2015 states in relation to committee meetings:

10 Manner of voting

(1) A vote at a meeting by a person entitled to vote must be cast in person unless the strata committee, by resolution, determines that a vote may be cast by some other specified means.

The effect of clause 28 of Schedule 1 and clause 10 of Schedule 2 is to require two separate resolutions – a committee resolution in relation to committee meetings, and an owners corporation resolution at a general meeting in relation to general meetings.

There are additional restrictions in relation to matters such as elections and amendments to motions that need to be considered. Further details can be found in the below article:

Recommended Electronic Strata Meeting Processes to reduce the Spread of Coronavirus

For Compliance Pack Members motions and templates on the subject please refer to:

16.2 Motions for Adopting Other Means of Voting**

16.1 COVID 19 – Non-physical attendances meeting templates**

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The easiest option remains for the Strata Managing Agent to affix the seal in accordance with section 273 of the Strata Schemes Management Act 2015.Where this is not practical, Regulation 71(1) (previously repealed on 12 May 2021 and reinstated on 21 July 2021) permits, in lieu of affixing the seal, that the people specified in section 273 of the Strata Schemes Management Act 2015 may sign instead, which will permit them to do so electronically pursuant to the section 9 and 14G of the Electronic Transactions Act 2000.See link to section 273 for a list of all the people specified:

https://www.legislation.nsw.gov.au/#/view/act/2015/50/part14/sec273

It will be necessary to note:

1. the date or dates on which it is signed,
2. the name of each signatory
3. the relationship of each signatory to the owners corporation (eg secretary, managing agent, committee member or lot owner)
4. if the managing agent – their licence number under the Property Stock and Business Agents Act 2002.

Where the managing agent is a corporation, the signature may be placed by:

1. the president, chairperson or other principal officer of the corporation; or
2. any member of staff of the corporation authorised by the president, chairperson or other principal officer to affix the seal of the owners corporation to an instrument or document, or to attest the fact and date of the affixing of the seal.

There is also no issue with using the common law principles of agency to have the owners corporation formally resolve to nominate a particular person to execute a document on their behalf as their agent (not affixing the seal).

COVID NOTE – The Amendments to the legislation are a temporary measure and will be repealed at the end of 20 January 2022 if not repealed earlier.

Only the items detailed in section 182 and the regulations are required to be provided.If the request is made by a person entitled to do so, section 183 of the SSMA 2015 requires an inspection to be agreed within 3 days of a request being made, and if not agreed a specific time and date (not more than 10 days from the date of application) or a specified means must be chosen and notified by the owners corporation. A specified means can include electronic provision, and it would be reasonable in the circumstances to request details of what items are required to be provided.

To the extent that an owner requests all items falling within the description of section 182, these would be required to be provided if the person attended in person, and would be able to be copied as specified in section 182(4):

In the circumstances the issue is not arising from the need to provide electronic copies, but rather is an issue with the ambit of sections 182 and 183 more broadly.

So long as the document falls within the ambit of section 182 it is required to be provided and there is limited means by which a managing agent is entitled to restrict access.

Almost all documents can be lodged electronically with LRS.As part of LRS’s policy of moving towards electronic lodgement generally, they have amended their approach to accept an increasing number of documents through the electronic lodgement network PEXA.

As of 11 May 2020

The documents currently able to be lodged are set out on the Office of the Registrar General site.

After 25 May 2020

Subscribers to PEXA will be able to lodge all other documents that would ordinarily be lodged over the counter at NSW LRS (but not plans or water access licences), including land dealings affecting titles which are not electronically tradeable.

To assist with this, LRS have introduced new rules in relation to registration of documents, by amending the lodgement rules under the Conveyancing Act (see Conveyancing Rules – (COVID-19 Pandemic) Amendment) to allow electronic signing of most documents.

Useful resources from LRS in relation to Covid-19 changes, including execution of plans and dealings is available from the NSW Land Registry Service

It depends on how the lot is used by the owner.With the commencement in April of section 137A of the Strata Schemes Management Act 2015 and the Fair Trading Amendment (Short-term Rental Accommodation) Act 2018, by-laws can prohibit use of a lot for a short-term rental arrangement where the lot is not the principle place of residence of the lot owner. The legislative changes also provide for a mandatory code of conduct which binds short-term rental accommodation industry participants.

Further details can be found in the below article:

New Short-Term Rental Accommodation Legislative Regime in NSW

A more detailed fact sheet is available for Compliance Pack Members through the below link:

Short-term Rental Accommodation Laws – Important New Developments

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Just include a note next to address “attendance by electronic means only, no physical meeting to be held”.Surprisingly, there is nowhere in the Strata Schemes Management Act 2015, or the Strata Schemes Management Regulations 2016, where the giving of an address is mandated for general meeting notices. It’s just common sense where there is a physical meeting.

The only time that it is dealt with is in Schedule 1 clause 20 in relation to Adjournments:

Yes, however the temporary rules put in place by the Corporations (Coronavirus Economic Response) Determination (No. 3) 2020 expired.

Clause 14(1) of Schedule 1 of the Strata Schemes Management Act 2015 (SSMA) states that a simple majority (1 lot – 1 vote) is to apply generally for a motion put to a meeting. This would apply equally to a meeting by pre-meeting electronic vote.The exceptions to this are:

1. Where a motion requires a special resolution – section 5(2) of the SSMA requires this to be determined based on unit entitlement.
2. Where a poll is demanded on a motion by a person present and entitled to vote.

While not expressly noted in the legislation in relation to pre-meeting voting, as the people attending by pre-meeting voting are taken to be present for the purpose of determining quorum, they fit the description of a person entitled to call a poll vote, being “a person present and entitled to vote on a motion”.It would be prudent to include a tick box next to each of the relevant motions in the pre-meeting voting form to allow an owner to indicate whether they wish a poll to be called on the vote.

Up until 12 May 2021 and from 21 July 2021, amendments to the Community Land Management Regulation 2018 allow:

1. Notices and other documents in relation to association meetings to be given by email.
2. Alternative means of attendance at meetings (such as by pre-meeting voting, or video-conferencing), only if the association first determines by resolution that vote may be cast by those specified means.

This changes the position introduced on 5 June 2020, where a resolution was not required to be resolved prior to voting taking place by alternate means. However, if a notice of a meeting has been issued under the 5 June 2020 position, then the new amendments do not apply to that meeting.

Elections are expressly still excluded for pre-meeting electronic voting.

3. Alternative means of an Association executing in accordance with section 8 by affixing the seal remain unchanged.
   • Regulation 24 will permit, in lieu of affixing the seal, that the people specified in section 8 of the Community Land Management Act 1989 (CLM Act) may sign instead, which will permit them to do so electronically pursuant to the section 9 of the Electronic Transactions Act 2000.
   • See the following link to the people specified under section 8 of the CLM
     Act: https://www.legislation.nsw.gov.au/#/view/act/1989/202/part2/div1/sec8
     • It will be necessary to note:
       1. the date or dates on which it is signed,
       2. the name of each signatory
       3. the relationship of each signatory to the owners corporation (e.g. secretary, managing agent, committee member or lot owner)
       4. if the managing agent – their licence number under the Property Stock and Business Agents Act 2002.
     • Where the managing agent is a corporation, the signature may be placed by:
       1. the president, chairperson or other principal officer of the corporation; or
       2. any member of staff of the corporation authorised by the president, chairperson or other principal officer to affix the seal of the owners corporation to an instrument or document, or to attest the fact and date of the affixing of the seal.

4. From 12 May 2021, associations will no longer be provided with the extended 6 month time frame to:
   • hold a general meeting after the initial period i.e. original 2 months period pursuant to section 9 of the CLM Act applies; or
   • to make an estimate when money is transferred between funds or paid from the incorrect fund i.e. original 3 months period pursuant to Schedule 1, section 13(7) of the CLM Act applies.

COVID NOTE – The Amendments to the legislation are a temporary measure and will be repealed at the end of 20 January 2022 if not repealed earlier.

There is no current provision to permit the affixing of a common seal electronically, unfortunately, however the amendments to the Strata Schemes Management Regulations 2016 on 5 June 2020 mean that a document can be executed in accordance with section 273 without affixing the seal, by the relevant authorised individual signing instead.This brings in s9 of the Electronic Transactions Act 2000, which provides for signatures to be made electronically in certain circumstances.

COVID NOTE – The Amendments to the legislation are a temporary measure and will be repealed at the end of 20 January 2022 if not repealed earlier.

This is fine.It is only where the managing agent is the proxy-holder that there is a restriction in relation to them casting a vote.

Schedule 1 Cl 25(7) states:

“(7) Limits on exercise of proxy by building manager, on-site residential property manager or strata managing agent

A vote by a proxy who is a building manager, 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.”

Yes.Section 85(3) of the SSMA 2015 states:

Section 36(2) of the SSMA 2015 states:

There are limitations to this set out in sections 36(2) where there are competing resolutions, and also 36(3):

As section 85(3) does not specify that the resolution must be at a general meeting (as sections 85(4) and 85(5) do), it can be resolved by the strata committee, as long as one of the other limitations does not apply.

It can be contrasted with the following two subparagraphs, which include “at a general meeting”.

A motion to waive interest can be obtained by Compliance Pack Members from the below link:

16.3 Motions regarding Levies**

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A by-law can be resolved by the owners corporation to restrict the use of the common property lift.

This matter has been raised with Fair Trading and they are investigating appropriate steps to address this.There is no simple solution to the owners corporation’s liquidity.

Owners may wish to investigate:

• Voluntary pre-payments by those able to afford it.
• Temporary drawing on the capital works fund for administrative expenses under section 76 of the SSMA 2015 (subject to repayment within 3 months)
• Strata Loans

No, not without a previous resolution to do so. While levies are not strictly required to be for a four quarter period, to allow for some flexibility it is prudent to allow the estimate to provide for an ongoing amount per quarter until the next AGM and to strike levies accordingly. We would also recommend ratifying the decision at the following AGM once a new budget has been prepared and adopted.We would recommend that steps be taken to hold the AGM in your usual course, further details on allowing for non-physical attendance can be found in the below article:

Recommended Electronic Strata Meeting Processes to reduce the Spread of Coronavirus

For Compliance Pack Members motions on the subject please refer to:

16.3 Motions regarding Levies**

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Owners Corporations are required to strike levies in accordance with their budgeted expenses. Not doing so is contrary to the SSMA 2015.The date that a levy falls due can be amended by resolution of the owners corporation at a general meeting, but it cannot be varied by a managing agent or the strata committee, as the original resolution was made at a general meeting in accordance with sections 79 and 81.

The best that owners can do is to revisit:

• The timing of the contribution under section 81
• Their annual budget to consider the non-essential items of expenditure that can be excluded or postponed; and
• Their 10-year Capital Works Plan to postpone proposed works where the capital item remains in good condition.

For Compliance Pack Members motions on the subject please refer to:

What Do You Need to Do to Comply with the 10-Year Capital Works Plan Under the SSMA 2015?**

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Motions in relation to amendments to the Levies and variation of the Capital Works Fund Plan is also available to Compliance Pack Members at:

16.3 Motions regarding Levies**

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Yes, section 76 of the Strata Schemes Management Act 2015 expressly anticipates an owners corporation doing so on a short term basis. Section 76(2) requires a levy to be determined to reimburse the amounts paid from the fund within 3 months.However, from 12 May 2021, the previously introduced amendments to the Strata Schemes Management Regulations 2016 to extend the time to replenish the relevant fund to 6 months has been repealed. In the circumstances, the time an owners corporation has to raise a levy to replenish the relevant fund is now 3 months as per section 76(2), irrespective of when the expenses were incurred.

Levies cannot be completely repealed, unfortunately.The provisions under the Community Land Management Act 1989 are to the same practical effect as the Strata Legislation:

Clause 13(1) and (2) of Schedule 1 of the Community Land Management Act 1989 require an association to estimate how much it will need to credit its administrative and sinking funds.

Clause 13(4) then states:

Yes, lifts are, almost always, a common property item and section 136(1) of the Strata Schemes Management Act 2015 states:

A by-law can be resolved by the owners corporation to restrict the use of the common property lift.

This really depends on the location of the strata scheme, whether or not it is in one of the Local Government Areas of Concern and whether the works are necessary.The pandemic is moving very quickly and the Public Health Order is being amended on an almost daily basis. A very useful link to the most recently amended Public Health Order is as follows:

https://legislation.nsw.gov.au/information/covid19-legislation/temporary-movement-gathering-restrictions

Cleaning of common property and maintaining gardens is prescribed works. The following page on NSW Government explains the requirements for prescribed works and prescribed works which are necessary:

https://www.nsw.gov.au/covid-19/rules/authorised-workers/renovations-repairs-maintenance-and-cleaning#prescribed-work

Provided that the owners corporation is able to continue to clean the common property (see question 2 above), the advice varies depending on the surfaces involved and how frequently they’re touched.Guidance on the level of cleaning required has been provided by the Australian Government Department of Health and can be accessed via the below link and should be discussed with the owners corporation’s cleaners:
Cleaning and Disinfection Principles

Again this will depend on the location of the strata scheme, whether or not it is in one of the Local Government Areas of Concern and the type of works involved.The pandemic is moving very quickly and the Public Health Order is being amended on an almost daily basis. A very useful link to the most recently amended Public Health Order is as follows:

https://legislation.nsw.gov.au/information/covid19-legislation/temporary-movement-gathering-restrictions

Construction works are allowed to continue, however there are requirements which must be followed, such as COVID-19 vaccination, testing and capacity requirements. The following NSW Government link sets out all of the requirements:

https://www.nsw.gov.au/covid-19/rules/construction-rules-and-restrictions

Section 479 of the Biosecurity Act 2015 (Cth) imposes severe penalties including up to 5 years in Jail, 300 penalty units (one unit is $210) or both.

Where Strata Works Agreements are being entered into for remedial works, or as work orders from the Tribunal following litigation, it is important that the contract terms be amended to include additional protections to the owners corporation to reduce their exposure to issues such as delay from issues such as access, or government restrictions, arising from Covid-19.Terms to be incorporated into Strata Works Agreements, are available to Compliance Pack Members at the following links:

16.6 Covid-19 Addendum to the Compliance Pack**

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Where the occupier has identified some legitimate basis for the exclusion, such as being elderly, or immuno-compromised, the OC should endeavor where at all possible, to avoid accessing these units.If it is a general objection to accessing due to the risk of transmission more broadly, the OC should endeavor to accommodate where possible, but not to the extent of putting itself in breach of its obligations.

Access can be sought under section 124 of the Strata Schemes Management Act 2015, where it has been refused by an occupier.

Compliance with Council requirements, such as Annual Fire Safety Statements have not been postponed, and, if anything, carry greater importance in the current times due to the significant increase in the number of people remaining in the strata scheme at any given time.

Essential services are still required to be met and completed, however it is important to incorporate adequate protection measures into the process. Bannermans has prepared additional items to be incorporated into Work Orders using the SCA (NSW) works agreement to cover this, available for Compliance Pack Members at:16.6 Covid-19 Addendum to the Compliance Pack**

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For renovations, repairs, maintenance and cleaning, the following NSW Government link sets out the requirements: https://www.nsw.gov.au/covid-19/rules/authorised-workers/renovations-repairs-maintenance-and-cleaning#prescribed-work

For construction works the following NSW Government link sets out all of the requirements:
https://www.nsw.gov.au/covid-19/rules/construction-rules-and-restrictions

Where there is a case of Covid-19 in a particular strata scheme, it is important to strike the right balance between protecting the remaining residents and other people on site from exposure, while also protecting the privacy of the individuals involved.Given that the affected resident will be required to quarantine for the duration of their illness, and contact tracing will be undertaken by the relevant authorities which will ensure affected lot owners will be notified where necessary, a non-specific notification to owners would be a sufficient response from an owners corporation. The owners corporation may also wish to enquire with the affected resident if they require assistance in terms of contactless provision of necessities in this time.

Where there is a greater risk of exposure to an infected resident, such as with essential services contractors, decision-makers in the scheme and any contractors with a risk of potential exposure will need to be advised to ensure that there are sufficient protections in place where access is unavoidable.

This will depend on the location of the strata scheme, whether or not it is in one of the Local Government Areas of Concern.Construction works are allowed to continue, however there are requirements which must be followed, such as COVID-19 vaccination, testing and capacity requirements. The following NSW Government link sets out all of the requirements:

https://www.nsw.gov.au/covid-19/rules/construction-rules-and-restrictions

Technically no, but it would be prudent to.The current Public Heath Order (https://legislation.nsw.gov.au/information/covid19-legislation/temporary-movement-gathering-restrictions) requires at clause 24(1) that \a number of places must not be “open to members of the public” and, relevantly, lists: “(f) recreational facilities (indoor)”.

The term “recreational facilities (indoor)” is broadly defined to include “a building or place used predominantly for indoor recreation, whether or not operated for the purposes of gain, including a squash court, indoor swimming pool, gymnasium, table tennis centre, health studio, bowling alley, ice rink or any other building or place of a like character used for indoor recreation.”

However, common property would, likely, not considered to be “open to members of the public”. In the case of Hu v Stansure Strata Pty Ltd & Ors [2014] FCCA 905, Judge Burnett states at [42]:

In the circumstances, it does not appear that the common property gym or pool would be required to be closed under the current Public Health Order.

However, given the intention of the Public Health Order and the significant penalty provisions in section 10 of the Public Health Act, it would be prudent for the strata committee to err on the side of caution and close the gym and pool and, for the abundance of caution, a by-law may be registered granting the strata committee the right to control common property in this way.

For Compliance Pack Members a template by-law for the temporary restriction of access to these facilities is available through the below link:

16.5 Motion for a By-Law to Restrict Access

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Wearing of face masks on common property

The current Public Health Order provides that persons must wear a fitted face covering over both the person’s nose and mouth at all times while the person is in an indoor area on common property for residential premises in Greater Sydney

Yes, although the approaches taken by different jurisdictions are slightly different and each court has a dedicated web page relating to their approach. It is best to refer to the most up to date resources in relation to each of these, including:

• Supreme Court
• District Court
• Local Court
• NCAT

Yes, all of the courts and tribunals remain operational, however as these matters are generally run in NCAT it is important to note that the current position from NCAT that:

In the Consumer and Commercial Division, which hears most strata disputes, priority is being given to:

• Tenancy matters
• Other urgent matters that arise in the following circumstances:
  • to address an imminent danger to a person’s health or welfare;
  • to prevent unauthorised work being carried out;
  • to prevent property being damaged; or
  • where a lessee may be locked out of a retail shop or residential premises.

Owners Corporations should not postpone commencing proceedings where they are unable to complete inspections and obtain final reports. The dates to commence are strict, and failing to adhere to them may cause the owners corporation to lose their right to recover.Where defects, or issues in the common property have been identified (i.e. water ingress), but the specific cause and remedial scope have not been prepared, the owners corporation can still commence specifying in whatever level of detail they have, the issues, and include a note that the specific details are to be further particularised by subsequent expert reports.