- This topic has 23 replies, 8 voices, and was last updated 14 years ago by .
-
Topic
-
Has anyone had any experience with ISTM’s (or Strata Community Australia as they are now called) “Who is responsible” document?
https://nsw.stratacommunity.org.au/resources/638/Who%20is%20Responsible.pdf
My strata managers are using it as a bible when refusing to repaint my damaged bathroom ceiling (see my earlier post for all the details) citing this section:
If damage is caused to a lot owner’s property while the owners corporation are effecting a repair, the owners corporation are responsible to fix the damaged property. However, if the cause of the damage to the owner’s property was not made when the owners corporation were fixing the problem; instead it was caused by the problem itself, then the owners corporation are not responsible to make good the owner’s property unless the owners corporation can be deemed negligent. E.g.:
2. A burst pipe occurs in a concrete slab. The owner’s corporation fix the leak, but water stained the ceiling paintwork of the unit below. Here the owners corporation are not responsible to repaint the ceiling because it was not the fixing of the repair that caused the damage.
I have asked strata to clarify where this comes from, what legislation, etc. They told me to contact ISTM but ISTM are an industry group for Strata Managers and so won’t deal with me as I’m not one & so not a member.
Strata are now refusing to answer any of the queries I’ve made trying to understand the situation saying that as I’m in dispute with them I will need to get legal advice. I haven’t at any point made any legal or even mediation moves. I just want to know why I should be liable to pay for repairs to damage I had no control over (and that their delays made much worse). I have asked to see the plumber’s report, for the contact details of the unit above and what the management agreement says in relation to urgent repairs (they claim they have to get EC approval and that is why it took so long).
If anyone can offer any kind of legislation-based advice I would be really, really grateful. I had the bathroom repainted only a few months ago and I can’t afford to do it again or to claim on insurance and lose my no claim bonus. I worry also that if this really is the law then what if it were to happen again, would I really keep having to come up with the money to repaint?
Thanks.
-
Replies
-
That’s a different issue – what that means is where there is a mediation, the parties attending must have the authority to agree to any settlement/terms that are agreed.
If someone applies for a mediation the other party can decline to attend. Refer here:
The mediation step is because you can’t apply to the CTTT for an adjudication unless you have done that. The way it works is you apply for mediation, the mediation occurs or does not occur (if the other party declines to attend), if no resolution is reached then you can apply for adjudication. The advice given to you by the OFT was correct to that extent.
So now you can go ahead and apply for adjudication, you just need to attach evidence that you did the mediation step which I believe is the advice that the other party declined and the file has been closed.
I have a view I want to express and put out there for feedback. Anjar made the initial comment “I have asked strata to clarify where this comes from, what legislation, etc. They told me to contact ISTM but ISTM are an industry group for Strata Managers and so won’t deal with me as I’m not one & so not a member.”. We have a similary issue at our strata, with a lot owner claiming that without formal ‘adoption’ the Memorandum has no authority.
Basically it appears Memorandum AG520000 titled “Defining_who_is_responsible_for_items_in_a_Strata_Scheme” was published by the Land and Property section of the NSW government in late 2011. It states that it can be used by both new and existing Strata Schemes. The Memorandum Memorandum was developed as an initiative of the Strata Industry Working Group (SIWG) which is hosted by LPI and includes representatives from industry and government who share an interest in the development and management of strata schemes. .According to here at the LPI web site: https://www.lpi.nsw.gov.au/about_lpi/faqs/strata_scheme/How_can_an_Owners_Corporation_identify_common_property_in_a_strata_scheme a special resolution is needed to adopt the Memorandum.However, if the Memorandum is not adopted, is it still authoritive? I would say that, in the absence of specific legislation or by-laws to the contrary, it is.If you want the memorandum to apply directly to your Strata plan, you need to adopt it under a special resolution.
However even if you don’t do that and someone challenges an EC decision that has been made based on the Memorandum, they are going to find it hard going with any SCA (formerly ISTM) strata manager, as well as at Fair Trading and the CTTT, because these bodies were all party to the formulation of the Memorandum and at the very least will use it for their own guidance.
That said, the document is not absolutely definitive even if you do adopt it because a) it’s not part of strata law and b) by-laws are inferior to other laws. So if, for instance, the Memorandum says the OC isn’t liable for damage cause by the failure of OC property but common law says it is, you might have a Memorandum-based decision overturned in a court of law. The question remains, wouldn’t it be easier and cheaper to just accept the principles in the Memo and insure your property appropriately?
There is a lot of common sense and clear thinking in the Memorandum and I would urge OCs to adopt it pretty much wholesale. But it’s not strata law so there will inevitably be disputes.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.
Thanks Jimmy, Your reply did clarify the issue at least for me. as I was getting a little bit confused from all the previous debate. Very well put and reduced to its essential elements. It would add some weight to any issues arising to have it formally adopted.
I am hoping that our strata will take this opportunity to register other by-laws at the same time so as to avoid costs.
Our scheme is voting in the next AGM to adopt this Memorandom. I am living in a block where the Strata Scheme was registered prior to 1974 changes, so the doors and windows on the balcony are private property. Does this mean the whole section about the balcony doesn’t apply? I was hoping this would overule the existing arrangement, but based on what people have posted it appears not. Generally, is the tool useful and worth adopting given problems such as this?
Most of what’s in the document applies to most buildings but every strata scheme is different in some way and there may be instances, such as you have identified, that require some tweaking. The way to do that is to either remove or change the items in the document to suit your circumstances and then approve the document ‘as amended’ or you could have a separate by-law, for instance, making windows and balconies part of common property, which brings your building into line with the memorandum.
The memorandum is not a one-size-fits-all solution and it’s not a law (until you make it a by-law). There’s nothing to stop you changing it to suit your strata scheme and it will solve a lot more problems than it creates.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.