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HI All,
Would appreciate some perspective here. We are pretty tired of strata living already after less that a year.Our complex has adopted the model by laws including option A for smoking**.
Despite this, we have experienced smoke drift entering our property since purchasing it for over 7 months. We have made multiple complaints to our strata manager, 6 in total. We did not raise the issue with the individuals themselves, as we had reason to believe it was not the best option.
The first time we wanted to take things further, after several complaints, we were advised because it was not a matter relating to common property, unlike parking, that a circular was not appropriate.
The second time we requested further follow up, we were advised this was an issue between two residents and a NTC is not usually sent unless “more than one resident is making complaints”?
The final time we complained we were advised to substantiate the smoke drift with the other EC member (I am on the EC). This was after several months of complaints? We have made it clear that we do not feel its a “personal conflict” and should be dealt with by the strata.We are the new ones on the block, hated the idea of complaining, and feel our concerns have not been adequately addressed. Although the smoking seems to have abated (today), we are experiencing other unpleasant issues, possibly as a result of our complaints. The tenants seem to have gathered support from a visitor of another lot, who is engaging in subtle intimidation – smoking on the common driveway, name calling (towards our dogs), and continuing to block access to our garage, despite having being asked to move many times when this has happened in the past. Thankfully, they are not always around.
Our question is: How can we ensure that the strata manager and owners are acting impartially? What should have been the most appropriate course of action here? Our strata manager did advise about the option of NCAT and mediation, but who do you aim to mediate with? The tenants, the owners, or the strata manager? All have a responsibility to make this stop I would have thought?
Thankyou.
**Option A
(1) An owner or occupier, and any invitee of the owner or occupier, must not smoke tobacco or any other substance on the common property.
(2) An owner or occupier of a lot must ensure that smoke caused by the smoking of tobacco or any other substance by the owner or occupier, or any invitee of the owner or occupier, on the lot does not penetrate to the common property or any other lot.
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Replies
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The essential issue here is that you have a by-law that has been breached. As the former Fair Trading minister Victor Dominello told me himself, owners corporations don’t get to pick and choose which by-laws they enforce. If they don’t like their by-laws, then they should ask 75 per cent of owners to agree to change them. Otherwise, they should just get on with it.
Now, your by-law is quite clear and it doesn’t mention the amount of smoke, the frequency of the drift or the effects – so you are right to complain.
In your shoes, I would show the committee and the strata manager section 232 of the Act (extract below) and tell them that if they don’t enforce it, you will take them to NCAT for no other reason than you have a better chance of getting costs in a case against them – and then they will have to pursue the smoker anyway.
This is not a dispute between two residents. It’s a by-law breach and if the committee and strata manager aren’t prepred to do their jobs, they should quit.
232 Orders to settle disputes or rectify complaints(1) Orders relating to complaints and disputes
The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following—
(a) the operation, administration or management of a strata scheme under this Act,
(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,
(2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if—
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
So that’s your process. Warn them that if they do nothing, you will do something, so they might as well get on with it.
And don’t give up on strata – it’s a great way to live once you get the dickheads back in ther boxes.
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Different schemes have different ways of handlign complaints. Some want to issue a warning or even three before issuing a Notice To Comply …But a Notice To Comply IS a warning. It says “you have breached a by-law and if you don’t stop we’ll take it further.”
It’s not a fine … it’s a threat.
Many people would say issuing one less formal warning initially is reasonable, followed by a Notice To Comply. Just passing on complaints is not doing anything other than being a mailman. Only a Notice To Comply can progress to action at NCAT so anything short of that is effectively doing nothing.
I’d say press on with this and demand immediate action.
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