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Topic
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The two owners on the top floor of an old block of 6 have installed ducted air conditioning in the roof space above a fire rated ceiling. ( double layer gyprock rated to resist fire for one hour ). There is no party wall in the roof space which is common to both units.
The air conditioning is unapproved, no bylaw registered, although the body corporate has allowed them to exist, and won’t take action to compel them to indemnify the owners.
To make matters worse, it would seem that they have compromised the integrity of the fire retardant ceiling by cutting holes in it for air outlets or diffusers. They have refused to provide any information as to whether they have taken any steps to prevent the spread of fire into the roof space via the unprotected diffusers. After enquiries from fire officers it would seem that what is needed are fire dampers to maintain the integrity of the ceiling.
To make matters even more worse, the owners corporation voted at a general meeting against allowing even an inspection of the installation in the common property to see if there was a fire safety issue.
As an individual owner I am therefore forced to pursue this matter through mediation and possibly NCAT.
What I would like to know is 1. Can I arrange my own inspection at my cost and hope to get an order against the BC for my expenses if it proceeds to the tribunal?
2. Would it be unusual to get an order for the 2 owners to pay for use of the common property, if the BC does not support such a payment?
3. Is it a valid argument for the owners to say in this case that they want their installations to come under a blanket or generic bylaw applying to all renovations in the block? I tend to think that major renovations like these are in a different level of seriousness than renovations contained within the lot .
4. Can the tribunal take action against the BC for negligence on the two counts of failing to protect all owners from incurring future expenses for maintenance etc of the illegal installations and also failure to maintain the buildings fire safety?
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I think you are over-extending on the negligence claim in a matter that’s quite simple, even though it has two elements.
The first is that the upstairs owners have enhanced the value of their property by using common property, and have done so without putting in place the normal ongoing commitments to maintain and repair their changes, or indeed, compensating the strata scheme.
The second issue is that the committee has decided to do nothing about this, a dereliction of their duty of care.
So first of all, you should tell the committee that you want the requisite by-laws for changes to common property to be put in place (including acceptance of ongoing responsibility for repair and maintenance).
Then you want the owners to pay the owners corp compensation based on the standard formula: increase in value of their property (as independently assessed) minus the cost of the actual installation.
And if the committee refuses to put these issues to a general meeting (called at the upstairs owners’ expense), you take them to the tribunal under section
282(2)[Actually it’s 232 (2) – see below] of the Act, seeking orders that the OC passes by-laws as outlined above.The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Ahhhh … an unfortunate typo. It’s 232 (2). And here it is.
Note to self: No late-night editing after the second glass of red.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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