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I am pretty sure many of these will be buildings where defects were not pursued and repairs were not undertaken while the owners were told that the main objective was to keep fees down.
Considering I’ve actually owned an apartment in such a building in VIC since it was newly built, I perhaps have some actual knowledge on the matter better than most.
Sure, I’ve seen that once the cladding has been removed, other issues under the cladding might have been exposed. I doubt however that anyone in the OC or the OC committee knew about those issues. I certainly know we didn’t in our building of 200 lots.
For sure there are national building standards issues. The flammable cladding issue is an big example of that. But the warranty protection for ALL new builds, not just stratas – houses as well, has been totally awful.
When my stratas in VIC have contemplated legal action on building warranty issues, there’s never been a campaign to “keep fees low”. There’s been warnings that such actions can be hugely expensive. With some typical costings supplied. Costs that might not be recovered at VCAT.
It’s only recently that Victorian strata committees didn’t require a special resolution to initiate legal action.
That’s not really correct either. It’s not that the strata committees (or the OC) couldn’t take legal action. It was where that legal action could be undertaken without a Special Resolution. They were pretty much limited to VCAT without the Special Resolution. Now they can take matters to certain courts. And be awarded costs if they win. And be awarded costs against them if they lose of course!
For an OC, even going to VCAT can be expensive. An OC almost 100% of the time needs to be legally represented. That’s costly. And it needs to be considered.
meeting in “secret” – I don’t know how else to describe people meeting where outsiders can’t observe them – and then refusing to share their deliberations with other owners.
And that’s not quite right either. Minutes of committee meetings must be published. Even email decisions have an email record. They all form part of the OC records.
I’ll be resigning from my committee chair positions of 40 years of service if committee day-to-day decisions all need such formality. Where on earth would anyone get the time to do it all?
Major committee decisions are another matter. But a committee can be limited by the OC on how major those decisions can be. Committees can get booted every 12 months. Owners can run for the committee. It’s all pretty democratic but like with any democracy, groups of like minded individuals (owners in an OC) can sometimes dominate. Democracy in action.
I agree that in VIC, formal committee meeting minutes for major decisions should be sent out to all owners.
I do that.
Being a strata owner in NSW, ACT, VIC and for a short while QLD, I’d say that IME as both a chair and committee member for many decisions, it is VIC that has the best overall system.
But it’s for sure far from perfect.
Every couple of years or so submissions are called for by CAV re OC Act amendments.
The states do observe each other and often adopt what seems to be a working improvement from other states. As you would know, many so called improvements turn out to be not so great when actually implemented.
It’s true that strata committees need not send out notices and minutes of formal committee meetings outside the committee. But calling them “secret” is a bit over the top. The notices and minutes form part of the OC records. And many committees will send them out to all owners anyway. I always do.
in reality, the huge amount of committee decisions in my OCs are made quickly and by email vote. That way we get relatively minor, every day matters promptly addressed. To make all those decisions formal with notices, minutes and any lot owner participation is totally impractical. And OCs can set limits on what a committee can decide if they wish to.
If the government is going to give any authority actual power to regulate stratas it needs to legislate that. I suppose it might happen one day. But until it does, there are no strata police and mediation etc is voluntary.
The OP needs to know if the crack is actually the culprit.
There should be a waterproofing system within the wall. Some types of external wall can become completely waterlogged (eg masonry is porous) and rely on other methods to achieve waterproofing.
Even if the upstairs neighbour has to repair their section of the wall, they’ll have to do that. Lot owners must maintain their lot.
S.153 might well apply.
But who is causing the nuisance and who is being affected by the nuisance?
It’s a lot v lot issue on a possible strata Act breach.
With lot v lot issues on Act breaches, an OC/BC need not get involved. And in some types of lot v lot disputes it probably shouldn’t get involved. But involvement or not is an OC/BC decision – at least at committee level.
There is an argument that OC/BCs have a duty to try to at least try to enforce their own by-laws/rules, even in lot v lot disputes.
Even in the landmark QLD case mentioned above, the Adjudicator noted that.
if, according to the Strata Manager, the balcony “airspace” isn’t common property and in fact part of the lot itself, then Section 153 definitely applies.
True. But the balcony air space IS common property, only with exclusive use by the resident of the unit. Your assessment of his professional commitment sounds spot-on.
I don’t mean to be difficult but that doesn’t seem right to me.
AFAIK the airspace on an apartment lot balcony is the same as the airspace inside a an apartment lot.
The balcony structure will be common property the same as the floor structure inside the lot is. But the airspace belongs to the lot with boundaries defined on the strata plan.
The poster seems to primary want Strata Police. Or some authority that will investigate their issues and take appropriate intervening action.
But there are no Strata Police. The only authority that can enforce strata law in VIC is the legal system. That’s the Tribunals and the Courts.
All of the rest are just advice bodies or mediation bodies that have no actual authority.
It’s nothing new. It’s been that way since the start of strata.
While I sympathise with the poster, there comes a time when one has to decide: Seek professional legal advice and or take the matter to the Tribunal.
Looking for an authority to intervene in your issues is not going to happen. There aren’t any except for the legal system.
The most you can get is advice and non-binding, non-compulsory mediation.
It’s the “Exterior Face” that is your issue.
If that is declared on the Plan of Subdivision, then the wall is totally your responsibility to maintain. Right through from its interior surface to its exterior surface.
Parts of it that are load bearing to the building would be common property. But in many types of construction, the exterior walls themselves are not structurally load bearing to the building.
While “Exterior Face” is not exactly common in VIC apartments, it’s not rare either. So lot owners can indeed own external walls or parts of them.
Even if the wall was the more common “Interior Face”, you’d still be responsible for any waterproofing membranes under its exterior surface. That’s legislated in VIC.
Who’s right?
You are of course.
Refer the Manager and the Committee to s.101 which specifically excludes Committee authority for matters that require a Special Resolution.
101 Functions and powers of committee
Subject to the rules of the owners corporation, a committee has all the powers and functions that are delegated to it by or under section 11.
Note Powers and functions that require a unanimous resolution, a special resolution or a resolution at a general meeting of the owners corporation cannot be delegated under section 11.
Wall was removed, lentil beam installed and building surveyor signed off the work
Which means the wall was structural which then makes it, by law, Owners Corporation common property. You really had no right to touch it without the OC’s permission.
Am I obliged to comply with allowing a third party to review the work?
Considering you had no right to alter property that is not actually yours, you had better seek the OC’s retrospective approval. I’d be agreeing if I was you. The OC could otherwise make you restore it.
Make sure that the strata contents policy you select will actually cover storage cages.
Many strata contents insurers will specifically exclude storage cages.
If the policy has that exclusion, you’d not be able to claim.
In VIC stratas, there are implied easements for common and lot services due to the Subdivisions Act 1988, particularly s.12(2).
It means that the common property and the lots have easements over each other for the supply of their services. A lot’s service infrastructure can cross both common property and another lot property. The same with common service infrastructure. In VIC, lots are responsible for their services once they exclusively service the lot – regardless of their location. So the lot needs the easement in order to maintain their service. The implied easements are created when the strata plan is first registered. The lots and the OC don’t get to automatically add new implied easements however and existing implied easements will probably be difficult to remove.
A service provider can require that some or all of its service supply infrastructure is placed on common property. That’s the case today for electricity meters. But it might not have been the case decades ago. In any event, it seems the electricity distributor is OK with the present arrangement.
To get it changed at OC expense, the OP would probably have to challenge the fairness of the implied easement. That I think would be difficult to do if the easement has existed for decades.
I think the OP will find out what an “Implied Easement” means on Victorian Plans of Subdivision (strata plans).
It’s one of the quirks, if you like, of strata. At the time the strata plan is registered both the OC/BC and the lots have automatic implied easements over each other for the supply of their services.
So the other lots (and the OC/BC) will basically owe the OP nothing. They have the easement already. And if it’s not in their interests they need not change the current arrangement.
The OP, on the other hand, could pay to alter the arrangement and win back the space for their lot. That would need OC/BC approval of course.
In the ACT, for Class A units, which means apartments, any wall lot boundary lies “lies along the centre of the wall”.
That’s defined in the Unit Titles Act 2001, Division 2.2 Boundaries.
A door is an element of a wall.
When I’ve been in a similar situation, with an apartment in the ACT, it was in the end a 50-50 cost split between myself and the OC.
The strata committee has obligations and they can be compelled to fulfil them.
But how are they actually “compelled”?
Has a Committee itself ever been individually fined or otherwise penalised by a Tribunal or a Court?
If so, I think I’ll be resigning from all the Committees that I’m a member of and my Chair role too. It’s all done voluntarily with my best intentions, due care and diligence. And that seems to be the limit of what I am actually compelled to do.
Having a statutory duty is all very well but failing to actually give an OC/BC or a Committee any authority to actually enforce that statutory duty makes it a moot point. Issue a breach notice? That’s just a warning. Not much enforcement authority there.
There is a recent QLD case where the Adjudicator made a comment on this:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QBCCMCmr/2021/596.html
In the last paragraph (47) the Adjudicator noted that: “The body corporate is not obliged to enforce section 167 of the Act, but it does have a statutory obligation to enforce the by-laws”.
That’s because the QLD Body Corporate and Community Management Act 1997 at s.94 states that a Body Corporate must enforce its by-laws (or at least try to). That’s what makes it a statutory obligation. But there’s no such requirement in the same Act for Body Corporate to enforce actual laws.
To me that makes some sense. The BC didn’t make the actual laws – the government did. If the government wants the BC to enforce them, it should give the BC some genuine authority to actually do so. But a BC can make its own by-laws, so it really should at least attempt to enforce those before a Tribunal or Court gets involved.
Regardless, if an OC/BC Committee doesn’t attempt enforce its by-laws/rules or actual laws what’s going to happen to the Committee? Not much in reality. So it’s not really “compelled”.
The waterproofing is to the external wall of the property – leaking in to the space between the external wall and my wall. Is this still my responsibility?
In VIC it depends:
- If the external wall is shown as a lot boundary on the Plan of Subdivision,
- What’s on the other side of the external wall,
- On the notation on the Plan of Subdivision (eg interior or exterior face) and
- How (where) any original waterproofing was installed.
In VIC, indoor leaking from a common property wall, floor or ceiling separating a lot’s inside from a lot’s outside balcony, terrace or courtyard is likely to be a lot owner responsibility. Indoor leaking from a common property wall, floor or ceiling separating a lot’s inside from common property outside is likely to be an OC responsibility.
But it can depend on the answers to the 4 points above.