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I agree that s.52 of the Owners Corporations Act 2006 can always be challenged at VCAT.
I disagree that installing a CCTV system would be a significant change to the use of common property.
As for significant change to the appearance of common property, the CCTV systems that my OCs have installed are quite discrete. Considering the common areas where they installed already have regular lights, emergency lights, exit lights, smoke alarms and water sprinklers, the cameras make pretty much zero difference appearance wise. I suppose it could depend on the installation.
If a CCTV system is installed that only covers common or public areas, records vision only and has the required signage displayed, it should meet all the legal requirements for a residential OC in VIC.
I’m not sure about Victoria
In Victoria, if the lot owns its land, the cost is shared between that lot owner and the other neighbour property.
This can make for “interesting” calculations.
Eg if several strata lots all border the one neighbour property.
Can owners who are keen to engage a body corporation forced owners who are not keen?
Only with a majority vote. If all the units of entitlement are equal, in a 4 lot scheme that needs 3 votes for. Else if put to a poll it needs a majority of the units of entitlement.
Nature strip – Is unit 1 responsible to mow the lawn on the nature strip?
It’s the responsibility of the OC I think.
Will it work?
Shouldn’t make a difference. Perhaps less work for owners?
The majority of owners (just over 75%) will benefit from the roof restoration works to be funded by the proposed special levy whereas the minority (just under 25%) have already had roof restoration work completed several years ago using existing accrued maintenance funds (prior to my purchase).
In VIC, when raising funds by Special Levy, an OC must consider the “Benefit Principle”. Basically that lots that benefit more should pay more.
So that’s what your OC should be doing.
If only 75% of the owners will benefit, then only those 75% should be levied for the works.
While the Owners Corporations Act 2006 VIC puts obligations on an OC to maintain its common property, I can’t see anything in the Act that excludes an OC from maintaining lot property if it decides to do so.
It’s actually quite commonly done in VIC.
For example the paint on some external parts of apartment buildings (the walls surrounding balconies) is technically lot property in VIC but an OC will typically decide paint them when it’s time to repaint the whole building.
For example an OC can decide to insure a whole strata complex that has no common property.
It can sometimes be cheaper or more appropriate for an OC to take on a responsibility if it affects all or most of the lots.
I’m not sure if a Special Resolution in VIC would be required.
Anything inside a lot, including floor covering is the lot owners responsibility. Is this not the case?
It’s definitely not the case with compulsory strata insurance.
While compulsory strata insurance must cover the common property, it typically covers more and can include things such as lot owned buildings, fixtures, fittings and improvements. Often that “extra” cover is legislated. But sometimes the insurers include it so that they can offer a single nation-wide policy that meets or exceeds all the legislations.
The OC does not need to terminate the contract in these cases as the contract extinguishes normally.
But in the OP’s situation, I suspect the OC voted to “extend” the contract. Meaning it was not a new appointment:
we agree at the AGM for another 3 years yet it’s really 3 years and 3 months?
If so, the question is: From what date does that 3 years extension start? Is it from the date of the vote or from the date that the existing contract would have terminated?
I suspect it’s from the latter unless the contract had already expired.
Which takes precedence the by-law that the owner has signed or the strata insurance?
IMO the committee was wrong.
Because if the by-law somehow took precedence it would leave the lot owner in a situation where they could not insure their floor. That would likely be considered harsh. The lot owner’s insurance company is right – they won’t provide cover for something that is covered by another insurance policy – in this case it was covered by the OC’s compulsory insurance.
At best the lot owner might need to pay the excess. They don’t even need to OC’s permission to make a claim.
The OC could also investigate switching to an insurer that doesn’t cover a lot’s floating floors if it’s really such an issue for them.
we agree at the AGM for another 3 years yet it’s really 3 years and 3 months?
You need to check renewal terms in the SM’s contract.
IME what usually happens is that the OC’s decision to renew the SM’s contract is a decision to renew from when the current contract actually ends, not from the date that the OC voted.
Also be sure that the OC gives the required advance termination notice.
Can an Owners Corporation Manager (in Victoria) take instructions from just one committee member without consulting the other two?
Technically, most SMs can take direction from anyone in the OC. That’s because most SMs are delegated the authority to act for the OC, excluding matters that need special or unanimous resolutions, in their Contract of Appointment which is confirmed at each AGM (Delegation of Authority). So check your SM’s contract and AGM minutes. There can be further restrictions added.
Realistically an SM, even with authority, should judge the issue and the relationship they have with both the committee and the committee member giving the instruction. They might use their discretion in straight forward matters but require a full committee decision in other matters.
Im not keen on it so Im wondering whether this would be classed as a ”significant alteration” to the common property? I think it would be.
I know many OCs in Victoria that have installed CCTV and it’s not been considered a ”significant alteration”. The OC Act defines it more clearly in s.52: “An owners corporation must not make a significant alteration to the use or appearance of the common property”.
CCTV doesn’t much alter the use or appearance of common property at all, let alone “significantly”. If a committee existed, it alone could approve it. Else an ordinary resolution of the OC should be enough.
There are actually very few legal privacy issues: some required signage, no sound recording and no observing private (lot) areas.
I agree about deciding on the footage access etc. The OC should establish how that will be done.
In Victoria: While floor structures can be common property, floor surfaces are usually lot property. That’s tiles, floating floors, carpets etc. It can depend on the Plan of Subdivision but that’s the usual.
In which case the issue falls to noise and nuisance rather than a common property issue.
In Victoria: If an OC receives a complaint about a breach of the OC Rules or the OC Act it can decide to do nothing about it. It should however give reasons for that decision.
So these matters can indeed becomes a lot v lot matter. All the OC Rules and the OC Act still apply but the lot owner (or occupier) might need to start any formal action themselves.
the insurer has said that they will cover third party damage because the malfunction was unexpected (I gather if the malfunction was expected, they wouldn’t cover me), however, under the Waters Act, because it wasn’t something I could have foreseen or expected, I am not liable to third parties.
While it might seem odd, that is a very important point. You generally can only be liable for things that you have negligently caused. Insurance companies know this, so they will also know that the OC’s requests for payment from you are likely to fail because the OC won’t be able to establish your liability.
It means that, in the absence of any negligence, the OC must repair its own property. Else it must establish your liability in which case you can hand over any such claim to your insurance company who will no doubt write a very stern legal letter back to the OC.
For common property damages where there is no liability, the OC can choose to pay for them itself or claim on its own insurance. Once an insurance claim is made, it cannot also claim any costs from you. That is due to the insurer’s ‘right of subrogation’.
When the hose was directed against the cladding area I had water running down the inside of my wall.
If that “cladding area” is shown as common property on the Plan of Subdivision, it will be a strata responsibility to resolve. Else it will likely be lot property and therefore a lot owner responsibility.
It’s very important to know and understand your PoS with these matters.
Further to this astounding revelation that balconies are probably not common property in Victoria, I found this following passage on an information sheet on the Communique platform:
It can depend on the Plan of Subdivision, but if “Interior Face” is used on the PoS in Victoria, as it almost always is for apartments, the balcony or floor structure itself will be common property while the surface of it including paint, tiles and any waterproof membrane beneath them will be lot property . It’s the same with kitchens and bathrooms.
So with leaking balconies and bathrooms, the issue often ends up being a lot owner v lot owner issue. The OC is often not responsible or involved at all.
Sometimes an expert interpretation of the Plan of Subdivision is required.