This article is about NSW Strata Managers and how they are regulated.
While of course your strata manager and community, precinct or neighbourhood manager must adhere to strata and community title legislation they are also regulated by the Property & Stock Agents Act 2004 and the Property & Stock Agents Regulations 2014 and their agency agreements.
A licensee in charge must hold a class 1 licence, other strata managers may hold a class 1 or class 2 licence and assistant strata managing agents must hold a certificate of registration. Assistant strata managers must within the four year term of their certificate progress to hold a class 2 licence.
The various licence classes provide what each person can and cannot do. For instance, only a license in charge with a class 1 licence holder may authorise trust account withdrawals for the business and an assistant strata manager cannot affix the seal of the owner’s corporation or authorise the withdrawal of money from a trust account
The Regulations are also helpful as schedule 1 and schedule 6 provide for codes of conduct that your strata managing agent must abide by.
Schedule 1 sets out general rules of conduct such as an agent must act in their client’s best interests at all times unless it would be contrary to the Act or regulations or otherwise unlawful to do so. It also provides that an agent must not disclose confidential information unless specific circumstances apply, must act honestly, fairly and professionally, must act in accordance with the client’s instructions unless it would be contrary to the Act or unlawful to do so and must not falsely misrepresent that a service provider is independent of the agent. All rules that you would naturally expect any agent to comply with.
Schedule 6 sets out a strata managing agent specific code of conduct which includes rules that they must act co-operatively with any new agent appointed to facilitate the transfer of records and include in their management agreements written confirmation of their appointment to conduct specific functions i.e. to serve notices to comply with a by-law and any specific limitations on their authority to do so.
Strata managers must be appointed by an ordinary resolution of an owners corporation or a community, precinct or neighbourhood association and, under section 55 of the Property & Stock Agents Act 2004 need an agreement in writing to rely on it for their commissions and expenses although a Court or Tribunal may order that some commissions or expenses are payable. That agreement should be signed and a copy provided to the owners corporation or association within 48 hours of being signed. The terms of their appointment (the resolution that is passed at general meeting) and their agency agreement also regulate what a strata manager can and cannot do, how they are paid, their appointment terminated and their liability.
If you have concerns about what functions your strata manager has been delegated the first step would be to look to their agreement. If this does not assist, ask and if needed Fair Trading, which regulates strata managers has a wealth of information available at: NSW Fair Trading: Strata and community living
Allison Benson
Kerin Benson Lawyers
E: [email protected]
P: 02 4032 7990
This is general information and should not be considered to be legal advice. If you are affected you should obtain legal advice specific to your individual situation.
This post appears in Strata News #505.
Have a question about NSW Strata Managers and how they are regulated or something to add to the article? Leave a comment below.
Read next:
- NSW: Q&A Strata Management Quotes and Appointments
- NAT: Why are Strata Managers so difficult to get along with?
- NSW: Coronavirus and Strata Managers: What Can You Do To Help?
This article has been republished with permission from the author and first appeared on the Thoughts From A Stata Lawyer website.
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And let’s not forget the one that is the bar too high.
So many comments on review sites about ‘my agent has a poor understanding of the Act’.
1 Knowledge of Act and regulations
An agent must have a knowledge and understanding of the Act and the regulations under the Act, and such other laws relevant to the category of licence or certificate of registration held (including, laws relating to residential tenancy, fair trading, competition and consumer protection, anti-discrimination and privacy) as may be necessary to enable the agent to exercise his or her functions as agent lawfully.
So many agents have no idea of what is the SSM Act or how it applies or operates.
Hence we have agent who act in non compliance and just say ‘stuff’ and expect owners to believe them because they are the one with the licence.
As if that set sets them up to meet the above rule.
The regulations quoted about also have a complaint process that if used drives ‘the State’ mad because they don’t want people using it. I have had that experience after using the process a few times. If you do that expect a call from them asking you to seek redress in a different manner.