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Our strata complex in NSW is currently in the throes of a large remediation process, mainly for water penetration issues. Our lot’s contribution to special levy was a bit < 20K. Our lot has a roof terrace, with a glass barrier on top of a solid wall to meet height regulations. The wall in question has 4 panes of glass approximately 750 mm x 300 mm. It joins a similar wall at right angles. The floor of the terrace needs to be lifted approx 150 mm at one end for waterproofing considerations, making the balcony height inconsistent with regulations. The proposal is for the strata to replace one of these panes, making the barrier consistent with regulations. The problem from my POV is that I’ll be left with an odd-looking, uneven top to my balcony wall. The roof terrace is probably the most valuable feature of the unit, so I do not wish to have it devalued. I have been told I can pay myself to have the other 3 panes replaced (approximately 2K, although a cheaper quote may be found). I could do this, but I have already contributed a lot to the remediation, as well as being the most inconvenienced unit owner over several years due to ongoing leaking. What’s my position? Should I expect that strata modifications to common property on my lot maintain the aesthetic integrity and value of my lot where possible (not hard to achieve here). Or should I suck it up? I was originally going to go with second option, but I think there could be an issue of principle here (and I’d be willing to take it further to test it, if appropriate). Would other owners accept a random pane of glass spoiling the alignment of their balcony (or swimming pool) wall? BTW, tthe exec committee are good, hard-working and reasonable people trying to do their best for the owners. Thank you for your consideration of my first post. I have gained a lot of value in the past from scrolling through the forum on other topics.
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Who originally installed the glass panels that added extra height to your balustrade – was it you or was it the OC?
This reminds me of occasions where OCs have dug up a bathroom or kitchen floor and tried to replace the broken or missing tiles with “near as” when identical tiles weren’t available (they never are). If I recollect correctly, they usually end up having to re-tile the whole area.
The significant section of the law is 106 (below) which sets out the Owners Corporation’s responsibility to maintain and repair common property.
Section 106.3 allows the OC to decide by special resolution not to repair or replace common property, provided “its decision will not … detract from the appearance of any property in the strata scheme.”
I think you could “take that to the bank”, as they say. Obviously, their decision not to line up the glass affects the look of the property so that’s a decision they are not entitled to make, whether by a simple majority or even a special resolution.
If they are as reasonable as you say, just show them the law and leave them to do the right thing.
106 Duty of owners corporation to maintain and repair property(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
(3) This section does not apply to a particular item of property if the owners corporation determines by special resolution that:
(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.
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@KAlice said:
Would those ’tile cases’ be available via NCAT, if I need to reference them?Sorry – I had a quick look – which is hard as all those cases on Austlii are fascinatiing, if irrelevant – and couldn’t find anything.
However, I think the section of the Act I quoted is all the ammunition you need. You could do a search here for “tiles” but unfortunately, even if you do find something relevant, people often come here for advice but don’t return to tell us the outcome.
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The process is to apply for mediation, which is an obligatory prerequisite before you take them to the Tribunal seeking orders under section 132.2 compelling them to fulfil their obligations.
Often the very fact that you are determined to take the next step may be enough to galvanise these recalcitrants.
You’ll find a mediation application form HERE.
By the way, the logic in this case is quite simple. The OC raised the level of the floor to undertake work that was for everyone’s benefit. You have paid your share of having that work done (even though it seems it is of little direct benefit to you).
To make the work compliant with building regs, they have had to raise one section of the balustrade. That means their work has made your outlook uneven and ugly. Their legal and moral obligation is to fix it.
By the way, if they choose to fight this at NCAT, you can ask that all costs be awarded against the OC in a way that means you don’t have to pay a share of the special levy that they will be required to raise.
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Oh for heaven’s sake. You say they are “hard working” – they certainly are working hard to twist meanings of words. If only they were that willing to work hard on a compromise.
I find it hard to believe that replacing one glass panel will in fact meet safety concerns; will the rise in the floor level be “ramped” to the present level so the existing panels still fulfill their safety function? (I imagining someone leaning across from the raised floor level to enable themselves to get over the lower barrier. I’m imagining a child doing this and falling to their death and your OC being sued….)
The underlined part of your post boils down to “you so tom-ay-to; we say tom-a-toe” – they don’t think it’s an aesthetic issue. Surely that’s in the eyes of the beholding owner!
As previously suggested, file the papers for mediation. Hopefully everyone will come to their senses that $2000 is a small price to pay to avoid thousands in legal fees and time wasted.
And go back to the books looking for those tile cases. They are exactly on point.
Good luck.
I really don’t know why you are bashing your head off that brick wall – especially when there is a lawyer involved (who I will bet my bottom dollar is not a strata lawyer).
No matter what other cases you find, Rumpole of the Strata is going to dismiss them and try to bully you into submission.
Your committee is hiding behind the lawyer and the lawyer thinks they are a bit superior to the rest of us, so nothing you say to them directly will make any difference.
If I were you, I would go for mediation, then for NCAT orders and let them try to bully a Tribunal Member, with bluster and BS, into ignoring the law.
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Don’t worry about finding a case. Just raise the idea of a single cracked tile that needs to be replaced inside a unit … but the tiles are no longer produced. Would anyone put up with a single mismatched tile or would they agree that all the tiles should be replaced in that case?
As previously indicated, once you file for mediation, they may realise you are serious and back right down. When you compare the time, effort and (if they engage a lawyer) cost to the OC, they might realise that simply paying to have them replaced will be the cheaper option.
I know it’s a big step, but you are in the right here and just need to DO IT.