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Can I Get Access to Our Strata Roll?

Wednesday, 21st May 2014

Sydney's leading strata lawyers and NSW Fair Trading tell you why and how.

Sydney’s leading strata lawyers and NSW Fair Trading tell you why and how.

It seems to be a constant battle.  Owners want access to the strata roll for their buildings and some managers refuse to supply the information.

“Some strata managers who know an owners corporation is unhappy with their performance, refuse to give out the strata roll information, so owners can’t call their own general meeting,” James Moir from JS Mueller Lawyers said.

“They use "privacy concerns" or something similar as an excuse, but in fact there are no privacy laws over-riding their obligation.

“Ask the strata manager to name them.

“Under section 108, any owner may ask to see the strata roll and can also take a copy.  The owners corporation can take action in

“The strata manager has to remember that the owners corporation owns this information and the strata manager is only acting as their agent,” he said.

But according to Daniel Russell from Chambers Russell Lawyers the expectation on how the strata roll is supplied is also a problem.

“In my experience the problems arise when lot owners think they have a right of access outside of section 108,” Daniel said.

“So owners think that their manager should just email them a copy.

“If, however, a manager fails to give the strata roll during a 108 search or on reasonable request from executive committee members then there is a power for an adjudicator to order them to produce it.

“Both the inspection rights and the adjudicator's power both get around the privacy act considerations. There are other questions surrounding whether the privacy act applies but since the only right to access the strata roll is under those provisions, the privacy act does not apply to them, and there is a no-costs dispute resolution mechanism, it is a legislative non-issue in my view,” he said.

According to Colin Grace of Grace Lawyers, the clash with getting information from a strata scheme lies in three areas.

Section 108 of the Strata Schemes Management Act which allows an owner (or their representatives) to search the records of the owners corporation (and this means predominantly all records including the strata roll).

Documents held by an owners corporation that are part of a disputed matter between parties (subject to legal professional privlege.

“Without going into all of the legal issues the basic rules are that an owners corporation is required under section 108 to allow all of the relevant records to be searched by an owner,” Colin says.

 “In relation to the strata roll it is the details of the owner, their address for service of notices and any agent involved. 

“Where in my view the privacy legislation crosses over is where some strata schemes (and managing agents) obtain more personal details like phone numbers and private email addresses.  The issue then becomes what is the purpose of that information’s use?

“If the private information is given to a strata scheme or managing agent as a business record then this information may not be part of the strata schemes records.  At this stage there is no real case to assist schemes in what to do. 

“I believe that the basic information is accessible but the private information may not be if it was given for the purpose of contact by the secretary or managing agent only and not for inclusion on the strata roll.

“Finally the Courts have decided that where there is a dispute between parties (like an owner and the owners corporation) those documents may not need to be provided to the other party and are subject to legal professional privilege. 

“However the extent of how far this “exemption’ goes to providing information is still to be decided.  In these instances I recommend that the person requiring access to the documents obtain some advice on what may or may not be accessible.”

And David Bannerman from Bannermans Lawyers has a very comprehensive take on the subject.

“There seems to be a common misconception that an owners corporation requires permission from its strata managing agent to access the strata roll and other records maintained for it by its agent,” David said.

According to David access is often denied, frequently citing privacy law concerns. This is a misconception, because these are the owners corporation's own records and it is entitled to them under various legal principles.

In particular:

The general principle under agency law is that documents created or held by agents in that capacity are the property of the principal, in this case the owners corporation. Although this would be subject to any contrary provision in the agency agreement, such a provision would be unusual and is not contained in the most commonly used templates.

Failure by an agent to provide access may constitute a breach of the agency agreement, the agent’s associated fiduciary duties or give rise to a cause of action in tort, e.g. conversion or detinue. In other words, the owners corporation may be able to sue the agent and hold the agent liable for any loss suffered by the owners corporation.

Owners corporations also have powers under section 105 of the Strata Schemes Management Act 1996 (“SSMA”), which provides in effect that an executive committee can give notice to a person in possession or control of property (including records) of the owners corporation requiring the person to deliver the property to a specified executive committee member, non-compliance being an offence with a maximum penalty of $2,200.

Further, failure to provide access may constitute a "failure to account”, justifying appointment of a manager or receiver under Part 9 of the Property Stock and Business Agents Act 2002 or action of a type justifying disciplinary action under Part 12 of that act.

These rights, including under section 105 of the SSMA, are subject to any claim or lien which the agent may have in relation to the records. However, whether an agent has a lien at all, which records it applies to and whether it negates rights under section 105 are all complex questions requiring further legal advice if a lien is asserted.

“An inspection under Section 108 of the SSMA is not required,” David said.

“That is a procedure available to third parties, e.g. lot owners and is not required by an owners corporation, which is after all seeking access to its own documents, for which it requires no authority.

“The privacy laws do not prevent an agent from disclosing, to its principal, information collected or held on behalf of its principal.

“In fact, the privacy legislation permits personal information to be collected, held, used or disclosed if required or authorised by law. The collection/access in issue is required by various provisions of the (“SSMA”). In other words, there is no sound basis for an agent to claim privacy concerns as a basis for withholding access.

“Another common claim by agents, which is also incorrect, is that the relevant records are the agent’s own business records. “Records prepared solely for the agent's own use may be excluded, but the strata roll and other documents normally sought by an owners corporation do not fall into that category.

“Accordingly, owners corporations should not feel frustrated by such situations, as there is a great deal which they can do if denied access to their records.”

And from NSW Fair Trading, Commissioner Stowe has this to add.

“Section 98 of the current Strata Management Act sets out what must be in a strata roll (e.g. names and addresses of owners),” Commissoner Stowe said.

“Under section 108, any owner may ask to inspect the strata roll and also take a copy. The strata manager can charge a fee for this. The Regulations specify a maximum fee ($30 for the first hour) that can be charged.

“It is the decision of the strata manager whether they charge the maximum fee and on what basis they make the roll available – i.e. hard copy inspection only or send electronically. In some instances only a hard copy will be available, because, for example, they haven't scanned the information.

“If a strata manager fails to provide access, the owners corporation can take action in the NCAT .

Also, the Property Stock and Business Agents Regulation provides that managing agents must respond to requests from the Executive Committee to inspect records within 14 days.

“Complaints and alleged breaches can be reported to Fair Trading and  result in penalties of up to 20 units for individuals ($2,200) or 40 penalty units ($4,400) for corporations,” he said.

 

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