A Matter of Land | Avoid the next Braemar bust-up - Legal way to collect outstanding maintenance fees

A confrontation last week at a strata complex in the Corporate Area, which left one man nursing a gunshot wound and several questions being asked about the actions of a group of security guards, has sparked a debate on the collection of maintenance fees at these complexes.

Several persons have since asked what can be done by the managers of a strata complex to force delinquent owners to pay their maintenance fees.

Today, I will take an in-depth look at the laws that govern strata complexes and what is legal and what is not.

What is the purpose of the maintenance fees?

In a strata complex the registered proprietor owns form the centre of the wall and floor and roof of his 'apartment', while everything else is

'common property'.

The common property is owned in what is called undivided shares between all the proprietors, and, as such, has to be maintained. The upkeep of the common property is the responsibility of all the registered owners of the strata units (apartments).

So this is where a maintenance fee becomes necessary. It is for the upkeep and maintenance of the common areas. This is very important for the upkeep and life of a strata complex as without this, the complex could become rundown and lose its value.

What can be done to collect these fees?

There are many strata complexes that have undertaken some unorthodox ways to try and force delinquent proprietors into paying the maintenance fees. These methods are not sanctioned in law. The Registration of Strata Titles Act (amended 2009) describes what actions should be, and can be, taken in trying to recover money owed for maintenance and any other cess that may be levied on a proprietor for the maintenance, or repairs, that need to be effected on, or in, the common area or property.

The restriction of access to, or use of, amenities in the common area by delinquent proprietors is not sanctioned in the law.

There is a clear course of action that can be taken by the managers of the strata complex. According to Section 5 (2) of the Strata Titles Act, the powers of the strata corporation include:

1. To determine, from time to time, the amounts to be raised for the fund for administrative expenses in the running of the corporation and to raise amounts so determined by levying contributions on the proprietors in proportion to the unit entitlement of their respective lots.

2. To recover from any proprietor, by an action for debt in any court of competent jurisdiction, any sum of money expended by the corporation for repairs to or work done by it, or, at its direction in complying with any notice or order by a competent public or local authority in respect of that portion of the building which constitutes, or includes, the strata lot of that proprietor.

3. To exercise a power of sale in respect of a strata lot in accordance with the provisions of this act.

Subject to the provisions of subsection (4), any contribution shall be due and payable on the passing of a resolution to that effect, and in accordance with the terms of such resolution, and may be recovered as a debt by the corporation in an action in any court of competent jurisdiction from the proprietor entitled at the time when such resolution was passed.

The corporation can write to the Commission of Strata Corporation, which can intervene on behalf of the management of the strata complex and have mediation between the corporation and the proprietor.

The property can be sold by auction to recover maintenance fees.

5A (1) Where for a period exceeding 30 days a proprietor fails, neglects, or refuses to pay to the contribution, all or any part of the contribution levied pursuant to Section 5(2)(b), the corporation shall act in the manner specified in subsection (2).

(2) For the purposes of subsection (1), the corporation shall notify in writing, the proprietor concerned and his agent, if any, and the mortgagee of the strata lot, if any:

a. of the outstanding amount of the contribution owing by the proprietor and the period for which the contribution is owed, outlined in a related statement of accounts;

b. of the amount of interest accruing on the contribution and the period for which interest is payable, outlined in a related statement of accounts.

c. that the proprietor is required, within 30 days from the date of the service of the notice, to pay the outstanding contribution and the amount of interest, if any thereon;

d. that if the outstanding contribution and interest accrued thereon are not paid ... within the period specified ... or suitable arrangements (made) to pay that amount, the corporation may sell the strata lot by public auction or by private treaty ... ;

e. that the proprietor, if aggrieved by the amount of contribution stated in the notice, may lodge an appeal if he has paid at least 50 per cent of the amount owing, or such other amount as may be agreed with the corporation.

So the law is clear, and has teeth, so the illegal methods do not have to be employed as the legal means can be much more effective than any other actions the management could take.

Until next time, traverse well.

Keep sending your questions and comments, and let's continue to explore A Matter of Land.

- Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. He can be contacted for questions or queries at craig_r_francis@yahoo.com or Precision Surveying Services.