compliance with strata and other applicable laws
DESCRIPTION
All you need to know about strata law compliancTRANSCRIPT
© Copyright 2013 Teys Lawyerswww.teyslawyers.com.au
Module 7 Compliance with Strata & Other Applicable Laws
September 2013
Essential Strata Management
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Compliance Involves More Than Strata Laws
Owners Corporations
Privacy
Tax
Discrimi-nation
WHS
EPA
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How Long has the Privacy Act Applied to Strata?
• Since 1988!• Because an OC discloses
personal information for a benefit , service or advantage
• What strata managers do as a contractor under Privacy laws binds the OC
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Dispelling Some Privacy Act Myths
• Privacy relates to individuals – wrong, it’s about organisations and what they do with personal information
• Privacy stops information flow – wrong, it just regulates how information is collected, used, disclosed and stored
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Personal Information Collected by Managers for OC’s & BC’s
Names
Addresses
Email addresses Telephone numbers
Property descriptions and
valuations
Tenancy details Owners credit card details
Bank account details for suppliers
Sometimes proof of personal
identification
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What is Discrimination?
(Discrimination and the Anti Discrimination Board of NSW , Anti-Discrimination Board of NSW Factsheet reprinted 4/01).
‘Discrimination means treating somebody unfairly because they happen to belong to a particular group of people.’
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The Many Faces of Discrimination in Strata Corporations
By-laws with age restrictions
House rules about breastfeeding at the
pool
Chairman flirting with the strata manager
Discussing at a meeting the desirability of a
person based on their appearance
Asking a new resident manager about his or her marital status or
sexuality
Enforcing a by-law about restricting
modifications for a wheel chair user
Banning children from playing on common
property
Restricting certain food types being cooked in a
communal kitchen
Refusing to install a new and easier to use
pool area access device
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Recognising Indirect Discrimination is a Key Issue for Strata Living
• Treating a person less favourably because of their disability
• Telling someone they can’t use the pool because their appearance will upset others
Direct discrimination
• A person is prevented from doing something a person without a disability can do
• A person with a disability can’t open the pool gate without the aid of a proximity device which the OC won’t install
Indirect discrimination
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New WHS Laws at a Glance
Effective 1 January 2012 in QLD, NSW, ACT
No ‘grace period’ for compliance (OHS plans good for 12 months)
OC / BC = Person carrying on a business or undertaking
Residential strata exemption confusing & virtually useless
Reverse onus removed - prosecution must prove breach
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Persons Who Are Not A PCBU
A strata body that is responsible for any common
areas used only for residential purposes is not a PCBU so long as no worker is engaged as an employee (s.7 WHS Act 2011)
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Only For Residential Purposes Means No• OC / BC employees• Common property with
commercial lots• On-site letting agent• Lots used as home businesses• Nannies employed in lots• Lots for short term
accommodation• Communication towers /
satellite dish / advertising signs• Paid workers temporarily on site
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The Tax Commissioner’s Starting Point
• Income tax ruling 2505
• Strata entities are treated as ‘public companies’
• Taxed at corporate rate of 30%
• Taxed as a ‘for profit’ company
• Principal of mutuality applies
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Tax is Not Assessable on Mutual Income
• ‘One cannot make a profit out of oneself’
• Where there are identical contributors and participants in surplus, there is not assessable income
• Can apply to strata entities
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Examples of Non-Mutual Income ie Assessable
• Interest from a bank• Access fees from non owners eg
occupants• Rental income from external
parties• Profit on the sale of assets to
external parties• Fees paid on the transfer of
management rights where the rights are held separately to the manager’s lot
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Fire Safety Inspections and Orders
• Environmental Planning Assessment Act 1979
• Local council inspectors have powers to inspect and issue orders
• Non-compliance has serious personal liability and insurance consequences
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The Fire Order Compliance Process
Notice of Intention to Issue Order
14 days Take advice Negotiate
Final Order
ComplyReportNegotiate
Appeal
28 daysDifficultNegotiate
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Redevelopment as a Compliance Option
• Redevelopment may be a better financial option
• Difficult to negotiate owner buy-in, development approval and finance
• Negotiate this before final order is made
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About the presenter - Michael Teys is the Founder and Principal Lawyer of
TEYS Lawyers. He has a Bachelor of Laws and practices exclusively in the area
of strata title law. He is a Fellow of the Australian College of Community
Association Lawyers. He is an Adjunct Lecturer with Charles Sturt University. He
appears weekly on SKY News Business Channel's Property Success with
Margaret Lomas and is a regular panellist for the property edition of Your Money,
Your Call for the same channel. You can read Michael’s blog on our website
www.teyslawyers.com.au and follow him on Twitter at @MichaelTeys.com
Teys Lawyers practice nationally in strata title law representing owners corporations, bodies corporate
and apartment owners. The firm’s practice groups include building defects, strata community disputes,
strata titles property law, by-laws and levy collection.
Subscribe for their free e-newsletter StrataSpace and find out more about them at
www.teyslawyers.com.au
About the Presenter