Current Page

[peterepete]

Hi All, four Unit self-managed Strata in N.S.W . Being the elected Secretary, I have taken on the job of ‘Strata Cop’ in a dispute over unapproved Common Property alterations by one of our Lot owners.

From the start, I enjoyed the full support of the Committee, firstly in discussing the Matter with the Offender and when that failed, Fair Trading mediation. The Mediator suggested we formulate a ‘mediated statement’, which would be presented to the other party. Unfortunately, this did not bring about a ‘Mediated Settlement’.

And now with a NCAT decision being the logical next step, some of the Committee are getting cold feet.

The Lot Owner has got wind of this and is saying that as not all members are in favour of a NCAT determination, Strata funds cannot be used in pursuing the matter. As I’m authoring the submission the only cost is the $256 application fee and my time and if for any reason the application can not be decided ‘on the papers’, I’m willing to front up at the Tribunal in person.

If just 2 or the 3 Committee members wish to continue, is the Strata responsible to pick up the $256 tab ?

Thanks for any suggestions.

Topic

[Jimmy-T]

As long as you have a majority in favour on Tribunal action, then you can proceed. There aren’t many issues in strata that require unanimous approval, and this isn’t one of them.

In fact, if you don’t proceed, even if other committee members drop out, owners in your block could take the committee to NCAT for failure to fulfill its statutory duties (section 232[2]).

I realise that the “cost” of your time is referring to the effort you are making rather than a financial impost. However,  just to clarify, the Tribunal will not compensate committee members for time spent pursuing a case. They will, however, allow for a claim for costs if you employ a lawyer but even then in limited circumstances.

If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. 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. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.

Quote

[UberOwner]

It’s worth asking the “cold feet crew” to explain their concerns.  There was a view around some time ago that NCAT was an expensive exercise with little chance of a good outcome for anyone.  I believe it has been substantially reformed and it’s more financially accessible these days.  $256 would barely pay for someone to run a vaccuum over your common areas – it’s not a lot of money.

So are they concerned because in their eyes NCAT=expensive?  Or are they concerned that you don’t have a good case and you might be asking for something unreasonable (and therefore lose)?

If it’s any help, I spent the first six months of this year navigating unapproved renovations in 2 of the 6 apartments in our block.  Rather than demand that the renovations were reversed (which would have taken us into NCAT), we chose instead to demand that the owners had the renovations assessed by an engineer and fire safety people.  The lot owners agreed to do this, because they didn’t want to go to NCAT either.  These various assessments resulted in a number of expensive updates to the renovations, but the substantive work (which actually improved their apartments and made no difference to the appearance of common property) passed all the tests.  Regrettably, the unapproved work included them installing equipment in the roof cavity, which is common area.  But overall we decided that this wasn’t serious enough to be bothered chasing it to NCAT, and the roof cavity work eventually passed all the fire safety and engineering tests.  My point being, not all unapproved renovations need to be reversed – it really depends on how you all feel about what has been done.  But make sure you pass a resolution that the OC does not take responsibility for any damage to common property caused by the unapproved renovations, and that any damages are the responsibility of Lot X to repair.  Lot X won’t vote in favour of this, but everyone else should.  In our case, we passed this kind of resolution and eventually, after all the fire safety and engineering assessments came back clean, we approved the renovations and the lot owners registered a by-law.  We also made sure we had a record of all the trades they had used with license numbers and contact details, and warranties for all work.  Same as if they had got the renovations approved in the first place.

Of course, if the unapproved renovations in your building are unbearable to you all – perhaps they have painted their balcony bright pink, or built a sub-structure in the common area, then you’ll have no choice but to go to NCAT and work through the process.  It’s my understanding that a majority committee vote is enough for you to proceed, but someone else will know this for sure.

Quote

[Vermont]

UberOwner makes a great point.

Perhaps this could be put to the rest of the committee as an insurance risk. Is it likely that premiums will go up should owners not be prohibited from this type of behaviour in the future?

Also, I agree – $256 is peanuts in the scheme (see what I did there?) of things.

Quote

[Jimmy-T]

Vermont wrote:

Is it likely that premiums will go up should owners not be prohibited from this type of behaviour in the future?

Interesting thought but insurance premiums tend to go up after actual claims rather than in anticipation of possible problems (beyond what’s already insurable). For instance, I have yet to hear of premiums being raised because there might be electric scooters in a block.

On the other hand, if the scheme doesn’t resolve this, there may be occasion win the future where they have to make a claim – shoddy work leads to a disaster and a new owner of the property refuses to pay, for instance.

My rule of thumb would be if it needs to be done, get it done. Make it clear to the owner why they are in breach of the law and how fighting this in court, without a valid legal defence, could mean that they are up for all costs.

If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. 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. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.

Quote

[peterepete]

Thanks all for your input. This is two examples of what I termed ‘Cold Feet’.

Remember they were most in favour for pursuing this up and till the point of Tribunal application.

This from the Treasurer, ” I think going to Mediation, although the outcome was unsuccessful, has brought the issue to light, and going forward I think it has set expectations for any changes to Common Property and works proposed by Unit Owners. That is that the Strata Committee needs to be notified and consulted, before any works proceed. I’ve considered and decided that I don’t wish to move forward with this Matter”.

The other reply, ‘My suggestion is going forward we all commit to obtaining Strata committee approval for any Common Property changes. This way we can draw a line in the sand and can all move forward on the same page. If there were subsequent issues then I would consider the Tribunal’.

Yeah, great ! Just lets start from Now and totally ignore the blatant disregard of the Act by the Respondent and hopefully our ‘expectations’ will be met in the future. To say nothing of the animosity that has been created and Unfairness.

I thought that at first, considering the 180 degree U turn that they had been paid off.

I’ll start with Mediation and Section232. Again thanks all for your input !

Quote

[Jimmy-T]

This website is chockablock with questions and complaints from strata schemes that didn’t follow correct procedure when changes to common property were made without authority and they were left holding the baby when the renovator sold out and moved on, leaving some sort of DIY mess behind them.

The laws are there for a reason.  The amended Act says this in section 37:

37   Duty of members of strata committee

(1)  Each member of a strata committee of an owners corporation has the following duties—

(a)  to exercise the member’s functions—

(i)  with honesty and fairness, and

(ii)  with due care and diligence, and

(iii)  for the benefit, as far as practicable, of the owners corporation,

(b)  to comply with this Act and the regulations,

Failure to pursue an obvious breach of by-laws and of the Act itself, looks like a breach of 1(a)ii and iii and 1(b). It would be interesting to see how the Tribunal viewed such laxity.

To put it another way, if committee members are too timid or lackadaisical to uphold their own bylaws and strata law, they shouldn’t really be on the committee in the first place.

If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. 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. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.

Quote

[Author]

Replies