[Austman]

@Paul2000 said:
I was wondering if this matter has been resolved but as there were no responses it is doubtful if MarianneM still monitors the site.

Here is a slightly different situation. In a small block with adjoining courtyards one owner has let a tree (technically a shrub) get out of control and it is now about 4 metres tall and blocks sunlight into our courtyard. The non resident owner refuses to reply to correspondence and is totally non communicative.

 

Any thoughts anyone?

You might need to get some legal advice.

But in Victoria (and probably similar in other states) the Owners Corporation Act refers to the Subdivisions Act.

The Subdivisions Act gives lot owners implied easements for many services including light and ventilation.

Here is an extract from the Subdivisions Act:

“Subject to subsection (3), there are implied—

for the benefit of each lot and any common property—

all easements and rights necessary to provide— 

full, free and uninterrupted access to and use of light for windows, doors or other openings;”

So if you feel you are being denied your right to light, you might have a case against the owner of the other lot. 

I’d be contacting the owner (not the resident) about the situation.

[Austman]

My OC has rejected the opinions here and in the press that a faulty swipe is an OC matter.

So now I have to take the matter to VCAT.

The OC has been told by its security company that fobs/swipes have a life of 3-5 years.  The committee says that after that an owner needs to buy a new one (cost is ca $85.00),  So an owner needs to pay the OC every 3-5 years for the privilege of being able to access their own property?

[Austman]

I contacted Consumer Affairs Victoria.  They think the issue should go to VCAT.  

 

 They agree with KP that it’s the Committee and not the SM that should be making the decisions on this for the OC.

 

 CAV could not see where in the OC Act the matter was specifically covered.  From my limited research it seems that VCAT has noted that it is the Subdivisions Act 1988 that guarantees an owner always has access to their lots – there is an implied right of way in section 12(2) which I see is even specifically mentioned on the strata plan.   The OC Act can’t change or override the subdivisions Act.

CAV also commented that there might be registered OC Rules that specifically cover the matter.   But when I last checked in 2012 there were no registered OC Rules  – only the Model Rules.

CAV also noted that, under consumer law in Victoria, swipes must be “fit for purpose” – so they might be expected to last for very many years, similar to a metal key (and not just until any warranty expires).  So the owner of the faulty swipe could take this matter up with the swipe manufacturer.   As I did not purchase the swipe, that’s something I can’t do.

[Austman]

Well, after I pointed out that  an OC cannot exclude an owner from access to their apartments through the common property, the SM replied with: “The OC is not excluding an owner from access to their apartment through the common property; we are just highlighting that it is an owner’s responsibility to purchase any keys, swipes or remotes to facilitate this access.” 

I would have thought that if an OC cannot exclude an owner from access to their apartments it can’t charge to access them either?

This is not about obtaining extra, lost, misplaced or damaged swipes where I agree the owner should pay.   It’s replacing a faulty one – that was supplied by the OC. 

[Austman]

This issue is still on-going for me.

I have a faulty swipe key that I’ve not bothered trying to replace – until now.  It’s for the common property building street entrance doors etc where I have an apartment that I rent out, so I only need it once or twice a year.  The building manager had earlier informed me I’d have to pay for a new one.

I decided after reading all the advice here to approach the OC management company directly.  Their response: It’s an owner responsibility and a replacement will cost $85.00.

So I’ve now pointed out that the swipe was not lost, misplaced or damaged.  It just stopped working.   And AFAIK there are no special rules about swipes and even if there were it could be unlikely that an OC could deny owners (a working) access across common property to get to their lots.

I’ll be interested to see what the response will now be.

[Austman]

mini said 

Yes, but how do you ascertain who “owns” the said item? Common law suggests that fitting and fixtures within the airspace of the lot are owned by the owner/occupier of the lot.

I suppose if the OC gives or sells the owner a key/remote/swipe it becomes the owner’s?  Isn’t that also common law?

Lot entry doors and the originally installed lock are also common property (in all my current OCs) but I’ve never had a demand from an owner for the OC to pay for extra/replacement keys to those doors.

Of course, if a by-law exists, that would be different.

[Austman]

mini said

Well, it depends on the terms of your by-law. But, from what I have observed, most by-laws tend to provide that swipe cards are property of the owners corporation.

Wouldn’t it depend on who actually owns the key/remote/swipe?

I’ve been a member of six OCs/BCs across 3 states/territories and have not yet encountered a by-law or registered special rule in any of my OCs/BCs about common keys/remotes/swipes.

The OCs/BCs that I’ve been a member of have initially given out a number of common keys/devices to the owner of each lot and have then charged a fee to supplement or replace them.   I suppose this means that they became the owner’s property and therefore the owner’s responsibility to replace if they went faulty?

I’ve noted that some OCs ask for a deposit for some common keys/devices.   I suppose that means that the OC continues to own them and therefore would be responible to replace it if faulty.

My current OCs pass on costs to any owner requesting an extra or replacement – this might include a managing agent’s fee and a locksmith’s fee etc but they don’t make any income from request.

$220 does however seem a lot for a swipe key!    The cost for my last replacements of 1 x key and 1 x swipe was totally $120.

[Austman]

I can comment that it’s the same, even for owners, in a building where I own an apartment.  If a building swipe card goes faulty the owner has to pay to have it replaced.

I suppose it’s the same logic as if your garage remote stopped working.  It’s an equipment fault but it’s the owner’s equipment.

That seems to be their logic.

[Austman]

@JimmyT said:

That said, there is a clause in the Act that says OCs are allowed to created rules to manage common property and individual lots provided they don’t contravene other laws.

And that, I think is the problem.  I see that VCAT throws out a lot of OC special rules because they often do contravene other laws.

Other laws do exist that allow strata owners the right to lease their lot in the same way as other freehold property owners and to have access to their lots for themselves, their tenants and visitors via common property.  So I can’t see that an OC can actually prevent an owner from leasing out a car space (especially if it’s a separate lot) or prevent access to that car space for the tenant that leased it.  Are there any xCAT cases that could be referenced that show otherwise? 

But an OC can ban storage in private lot car spaces – that seems well proven in VCAT.  Interestingly, the OC can’t touch the stored themselves.

[Austman]

@JimmyT said:
The owners corporation has the right to restrict who comes and goes on common property to people who are registered owners or tenants or their bona fide guests.  Renting a car space to an outsider can be a serious breach of security and safety in a strata building since there is no recourse under law if that unregistered sub-tenant damages common property or behaves in breach of by-laws.

In Victoria there is no automatic requirement to give an OC any tenant information.  The OC need not even be informed if the property is tenanted at all.  It’s never been a requirement in any of the properties I’ve owned and still isn’t in any of them today.  So tenant ‘registration’ doesn’t exist in Victoria but VCAT has ruled that tenants still have to obey OC rules (by-laws).

And in my case, the car space (which was a separate lot) was separately tenanted.  A lease existed for it.

The OC can handle security as it sees fit but in doing that can it stop an owner or the owner’s tenant from accessing their lot?   That lot might be just a car space.

[Austman]

I own an apartment in the Melbourne CBD. Two lots – one being the apartment and one being the car space.  For years the two lots were let out separately.  But then the OC stated “only residents of the building can park in lot car spaces”.  But no special rule (by-law) was passed and only model rules (by-laws) exist.  The OC could code the car park swipe, I suppose, to limit who can enter.

Is it my right, as with my apartment, to let the car space to anyone I want?  But as per the apartment, the tenant would have to abide by the OC rules?  It would still be a car space being used as a car space – but used by a non-resident  tenant.

AFAIK there were no development consents – in fact many of the apartments have no car parking space at all.  The Melbourne city council will now charge a car park tax (the congestion tax) for car spaces let to non residents, but that is not the OC’s concern.

[Austman]

Assuming there are no safety or insurance issues, I think it would depend if the heater existed when the strata plan was first registered.  If it didn’t, OC permission would have been needed before it was installed.  And if OC permission was not given, the OC can have the heater removed from common property.   If the current lot owner installed the heater that owner would have to pay for the removal and restore the common property, else it would be an OC expense.

Even installing an air conditioner on common property needs OC permission as this VCAT decision shows: https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2013/933.html?stem=0&synonyms=0&query=conditioner%20and%20%27owners%20corporation%20list%27 

[Austman]

You don’t say where you live.

But in Victoria (and probably in other states) equipment like an air conditioner that serves just one lot and is powered and controlled by that lot is the lot owner’s responsibility to repair and maintain regardless of its location.  Implied easements might exist that allow the lot equipment on common property.

It seems the SM may have made a mistake (hopefully in good faith).  That happens – areas of responsibility can be tricky in Owner Corporations.  But what do you expect to achieve?   Ultimately, regardless of any SM mistake, if the responsibility for the AC’s repair and maintenance was yours, it still is yours.

So get the AC fixed.  If it’s noisier due to the earlier repair, get that company back.

[Austman]

We have a similar arrangement in our building.  There are water sprinklers in every room, hard-wired smoke detectors in each apartment and smoke detectors in the common areas (except the car park).  But only the common area smoke detectors are connected to the building’s fire panel.  Your system might be different – some systems might also connect all internal apartment smoke detectors to the fire panel.    If that’s the case, there will be false fire alarms quite often.

The answer to your question is: if the equipment was part of your occupancy permit (or equivalent) is has to be maintained.   That’s not to say that adjustments can’t be made – eg replacing smoke detectors with newer ones that are not as prone to false alarms.  Detectors need replacing periodically anyway.   The whole system could also be redesigned.  In Victoria, if you do that, a building permit is needed to ensure that the new design meets current standards.  Your fire equipment service company should be able to advise further.

In our system, like yours, a fire panel alarm itself will not automatically call the fire brigade.  That happens if a water sprinkler goes off.   So we have placed instructions, at the fire panel itself, on how to correctly attend false alarms. These instructions are directly from the fire panel’s manufacturer.  No call-outs are then needed.   All residents are told where the fire panel is located and are warned not to ventilate their apartments, after a smoky cooking incident, into the common areas of the building.  As part of our occupancy permit, we have a service agreement, where the fire panel is professionally inspected/checked weekly.

[Austman]

@mini said:

With respect s 48 of the Owners Corporation Act 2006 (Vic), subsection 2 requires that the lot owner be served with a notice. A lot owner is only liable for damages under that section if the notice is not complied with in 28 days. That does not appear to be for the op’s case.

In any case, the above is only true is the op is in Victoria since the legislation you have quoted is Victorian legislation. It may be that he is in another state.

But s.49 doesn’t need any notice.  That’s recovering the costs that the OC spent.  The owner might still need to be given notice make their own repairs at thier cost, which seems the case here.  S.49 states that the OC can recover the costs for repairs, maintenance or other works that it undertook for the benefit of lot owners.

I know the above is Victorian OC law but in general, if someone damages your property, do you need their permission before you arrange to repair it?  You might not even know who damaged it until aftef calling in the repair man.

[Author]

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