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How does precedence work in Strata?
I’d like some clarification on how this is actually applied. I keep getting mixed information.
For example: One owner has installed a whirlybird many years ago. No by-law has been recorded for the modification. EC did not pursue. Now another has installed one and and the current EC is insisting that owner get a SBL for it.
Wouldn’t this mean the owners who first installed the whirlybird should also have to get one as well because precedence has been set?
Thanks in advance for any replies.
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My view is that precedent doesn’t apply at all! The law has to be applied to each situation regardless. However, in practice what the EC can coerce an owner to take responsibility for is another matter!
Pedantically and legally, if there was no by-law for the whirly bird installled many years ago … no responsibility for the owner. I would think this applies to the owner who had one installed more recently also. That is you can’t legally enforce a special by-law retrospectively making that owner liable either. In both cases the EC could probably get SBLs passed but if it went to NCAT or tribunal the new Bylaws would be found to not be binding on the owners.
To be valid any by law would have to be enacted before or at the same time (contemporaneously) as the installation. Owner’s who installed whirlybirds and could convince a tribunal that at the time of installation they were not advised of or aware of the whirlybird’s maintenance being their responsibility would get a ruling in their favour.
What are other’s views? (bush lawyer here *smile*)
@Cosmo said:To be valid any by law would have to be enacted before or at the same time (contemporaneously) as the installation. Owner’s who installed whirlybirds and could convince a tribunal that at the time of installation they were not advised of or aware of the whirlybird’s maintenance being their responsibility would get a ruling in their favour.
Precedence has nothing to do with it. If a previous EC was incompetent, then you can’t expect subsequent ECs to be stuck with having to repeat erroneous actions or lack of actions.
If the person who installed the first whirlybird (roof-mounted, self-propelled extraction fan*) on common property without permission still owns the property, then they should be subject to the same rules.
If the original installer has since sold, that installation is now part of common property.
The person installing the new dryer still has to abide by strata law (rather than by-laws, in this case) which say that you can’t change common property without permission. Claims of precedence won’t fly. The Owner’s Corp can order him to remove the whirlybird or accept their terms for keeping it.
As for the first whirlybird, if its current owner won’t accept responsibility for it under the same terms as the other (new) guy then they can just insist that the original dryer be removed.
The law is the law. Precedence counts for little and even less if there is a strata law breach involved.
*I only discovered what a whirlybird was later and edited this so it makes sense – JT
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Isn’t a whirlybird one of those ventilation things attached to the roof? I’m interested to know what it is now!
@JimmyT said:
@Cosmo said:To be valid any by law would have to be enacted before or at the same time (contemporaneously) as the installation. Owner’s who installed whirlybirds and could convince a tribunal that at the time of installation they were not advised of or aware of the whirlybird’s maintenance being their responsibility would get a ruling in their favour.
Precedence has nothing to do with it. If a previous EC was incompetent, then you can’t expect subsequent ECs to be stuck with having to repeat erroneous actions or lack of actions.
If the person who installed the first whirlybird (Clothes dryer??) on common property without permission still owns the property, then they should be subject to the same rules.
If the original installer has since sold, that installation is now part of common property.
The person installing the new dryer still has to abide by strata law (rather than by-laws, in this case) which say that you can’t change common property without permission. Claims of precedence won’t fly. The Owner’s Corp can order him to remove the dryer or accept their terms for keeping it.
As for the first dryer, if its current owner won’t accept responsibility for it under the same terms as the other (new) guy then they can just insist that the original dryer be removed.
The law is the law. Precedence counts for little and even less if there is a strata law breach involved.
Regarding Jimmy’s quote of my response … upon reflection I have changed my view. He is correct and me wrong *guilty smile*.
My statement re the by law having to be passed “at the same time” as the installation should say that if the owner who did the installation still owns the property.
Otherwise you would have the impractical and absurd situation where a current owner could avoid responsibility by hiding changes to common property.
OK Cosmo,
We got there eventually, but the Flat Chat faithful are hanging out for one piece of information … what exactly is a whirlybird?
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Roof-Mounted Whirlybird
Thanks to Whale for that (above). Now, have a think about the tiles cut and flashing required to make that watertight.
The Owners Corp should definitely be demanding the person who installs it takes responsibility for not only the repair and upkeep of the device, but the roof area into which it has been cut and the waterproofing around it.
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