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@Bewildered Owner said:
- The building manager is a part time contractor and also an owner
Look forward to your reply
Still Bewildered
Hi Bewildered,
I have one suggestion if the OC does engage this building manager who is also an owner. I would suggest that appropriate safeguards be put in place to ensure that the OC is getting proper value for any work done.
A block of units I was involved with did engage an owner and it worked very well but I have heard of stories where OC’s have been either short changed or the building manager/owner being accused of misconduct.
In the block of units I was involved with formal procedures were put in place whereby independent quotes were regularly obtained for all work done by the owner/manager. The independent quotes should not be obtained by the building mangager/owner. Such action safeguards both the building manager/owner and the OC from claims of favouritism and financial mismanagement.
I realise that my comments do not go to the initial issue you raise, however, feel that in terms of transparency they are important.
“Thanks. I am organising to do the usual thing under such situation, how can OC get rid of the Strata Management? Do we have to wait till their contract expire or can we give them notice to terminate? What are the correct procedures to follow under the Act? “
Hi Chak, others might know better than me but for the Strata Manager we almost hired the contract stpulated a 3 year term where we had to compensate them if terminated. Then according to the contract we were asked to sign, the contract was ongoing and we needed to give 3 months notice to terminate.
I think it all depends upon the contract you signed when you first engaged the Strata Manager. As to the second part of your question, I will leave it to others.
Hi excathedra, My interest pricked when you mentioned “The statutory review is due this year,”. Can I please ask what review are you talking about? I live in NSW and one of the issues we have as an OC is a review of the common property.
Currently we have none and most owners reject the need for one on the basis that if we get one the inspecting body will perhaps nominate things that don’t really need doing. I can see their logic, the person/body doing the review to cover their own liability present a long list of things that they say could need doing. At the moment the OC and owners just use a ‘keep your eyes open and use common sense”.
If we do get a professional review and a big list is presented to our OC many of the owners are of the opinion that we would have to get the full list done or void our insurance.
Generally I would say I agree with PeterC and excathedra. Location in real estate whether it be in strata or freehold has advantages/disadvantages. Our strata has some similar issues which we resolved. The one issue that our strata would discess would be about the alcove you mention.
Is the use of these alcoves depriving others of common property that they could reasonably be expected to use?
Does their use deprive any other owners in any way or result in a nuisance to other occupiers?
By deprive I don’t mean just because the other units can’t use the alcove no one else should be allowed to.
Bythesea, a first check should be the plan for the strata. This should outline any special conditions re the roof. I have heard of the roof cavity being show in the strata plan as the exclusive use property of the top units.
Whale, thanks. I have followed your posts since my joining and your knowlegde and willingness to share are greatly appreciated!
Hi Whale,
As well as following the general topic with interest, I took a special interest in the statement you made that:
“The Executive Committee (E/C) has advised our Proprietor/Landlord in writing which of the repairs on her extensive list are her responsibility and which may be the responsibility of the Owners Corporation’s (O/C) once she reimburses its costs to repair the damage that her “squatters” caused to Common Property (intercom etc) in accordance with the chain-of-responsibility outlined in our Special By-Law.”
Is it possible for you to outline the purpose and substance of that special by-law. It is something that I (and I am sure many other forumites) should be interested in as the general circumstances outlined in your original post on this thread probably occur a lot.
Thanks
@struggler said:Should there be an exclusive use clause for each unit and their respective parker? Should there be a risk assessment done to investigate the access to residents and emergency services vehicles (there has already been an accident where a car navigating the obstacle course of cars down the driveway has hit one)? Or can these owners get to increase their parking, despite limiting access for others? Not every unit has the space to allow cars parked in front of garages. To do so would block others getting in and out of their garages or parking in the driveway.
Hi Struggler,
My response is to situations where parking on common property is tolerated in our small complex. While is appears different to the issue you have I make the following comments that, I believe, when interpreting by-laws a ‘common sense’ or ‘what is the nuisance’ approach is often best used.
Regarding the questions/comments you ask/make:
1. Should there be a risk assessment done to investigate the access to residents and emergency services vehicles. My view is yes.
2. can these owners get to increase their parking, despite limiting access for others. No
3. Not every unit has the space to allow cars parked in front of garages. To do so would block others getting in and out of their garages or parking in the driveway. If a unit has the space to allow cars parked in front of their own garage and it does’t block others is it tolerated?
I know enforcement of the rule “No parking by anyone” is clear cut but it is not always that simple. In our complex there are a couple of units where occupiers can park directly outside their garage and this does not disadvantage or restrict others of access to their garages. Despite this occupiers of units where parking outside their garage would hinder access by other occupiers sometimes complain that as they can’t park on the common property directly outside their garage no one else should be able to do so. I find this view a bit selfish. Sometimes there are natural consequences of buying a unit in a certain location be those conseqences, view, noise or parking.
It is unfortunate but there are these issues in all walks of life. I think that the laws against fraud and the Strata legislation are there and in most cases would be sufficient.
Also I read PeterC’s reply in the thread ‘conflict of interest’ about a ‘Code of Conduct’ and am not sure if it is in the governing statutes of other states but it is a good idea.
I know in practice it is not as easy as it sounds but in reality, the best and really only form of “intregity audit” is a vigilant and robust OC. Too often ECs are able to get away with things because other owners don’t want to take responsibility or perform duties.
Hi Whale, it wasn’t me that had the issue it was sassy72.
My posting was just pointing out that sometimes with issues like this there is background to the issue. Finding out the background to how the situation arose might help decide an appropriate course of action to resolve the issue. It would be interesting to see if, perhaps, there is an old ‘agreement’ that doesn’t meet the formal requirements of an OC resolution.
Of course maybe there is no background to the issue. The facts outlined by sassy72 (that parking in the spot did not block anything and sassy72 was able to park in the spot when the spot wasn’t ‘taken’) would indicate that either:
- the landlord is acting outside the law. And therefore enforcing the ‘no parking on common property’ might be the way to go;
- or perhaps the tenant is just telling porkies so again the enforcing the ‘no parking on common property’ might be the way to go.
I would be interested in finding out whether sassy72 resolved the issue and if so how.
I agree with struggler, a special levy or even a levy increase can’t just be imposed by the EC or even the OC. I think it requires a vote with not less than 25% of those voting against the levy/special levy.
It is a matter of who will support the levy. When you say “We have supplied professional quality artworks” I am not sure whether you are saying just yourself or various owners. If the supplied artworks are “very much admired by every other strata occupier” perhaps it wouldn’t be too hard to get other owners to vote against the levy.
Knowing how most owners hate levy increases and special levys pointing out to other owners that they are paying for something that you all now get ‘for free’ has to be a strong argument for not replacing the paintings. As for the flag pole the same rules apply, how many want it and are willing to pay for it?
As for the legalities, acquistion of the photos and flag pole would not be authorised from the Admin fund, refer section 68 and 75(1) of STRATA SCHEMES MANAGEMENT ACT 1996. This is because the expenditure is not recurrent. The expenditure probably could be authorised under sections 71 and 75(2)(a) as acquistion of personal property.
ccbaxter,
I don’t know the size of your strata or your social skills in terms of your OC. In would appear you don’t want to put yourself out there as a trouble maker or confront the EC. I can idenify with your position and I am sure most people can. My view is that in terms of strategy you need to find like minded people. It has been my experience in Strata and corporate life that many decisions are determined before a meeting.
Sound out other owners at a level you feel comfortable with and see if others want to take action also. Perhaps after a while you might find you have enough like minded people to make agendas?votes go your way.
If you sound others out and the feedback you get is that you are basically on your own then you have to make the decision is this a big enough issue and do you have the personality to make waves on your own.
What ever happens, good luck!
Hi Whale, it is getting to sort of a theoritical argument but I guess the distinction is whether a “person” has done anything to “hinder or obstruct” access to rectify the problem. Section 65 of the SSMA 1996 is the relevant section, refer subsection (5)
In the case of a ‘non compliant not approved’ lock a person would done something to ‘hinder or obstruct’ if access couldn’t be gained because of the lock.
In the case of a leak in a wall a ‘person’ probably wouldn’t have been involved, although I am sure one could think of a situation where a person could have been involved eg, by doing something to the wall.
In caj’s orignial post the question was asked “Who is responsible for the locksmith fees?” I was just trying to point out, in response to a hypothetical put by Jimmy, that the legislation provides that in certain circumstances the OC would not be liable. The legislation doesn’t state who would be liable and in practice the result of who is liable would be result of negotiation and available evidence.
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I love a good argument
. My view is that, if the lock was non compliant not approved and this caused the damage ie the locks had to be drilled out because the locks were non compliant and not approved, the damage can be directly related to the actions of a person so presumably the OC would have an argument that it was not liable. The more recent the non compliant not approved lock was fitted the stronger the case for the OC not being liable eg if the non compliant not approved lock was fitted shortly before the need to access the unit the OC’s arguement would be stronger than if the non compliant not approved lock was fitted a few years ago. The reason being that the longer ago it was fitted the more chance the OC would of or should of been able to discover it was non compliant not approved (of course in practise we know that the OC would most probably never find out regardless). If the non compliant not approved lock was fitted by a previous owner I would wager that the OC would not have an argument.Jimmy,
I think for the purposes of the section ‘hindered or obstructed’ referrs to the actions of a person. If the damage arose as a result of the person’s obstruction or hinderance the OC is not liable. By inference the person who obstructed would be liable.
Reading the Section 65 it says “any damage to a lot or any of its contents caused by or arising out of the carrying out of any work, or the exercise of a power of entry, referred to in this section” (emphasis added). In my view, the section ie section 65 should be read as containing within it any conditions/definitions before going elsewhere.
Subsection (5) says a “A person must not obstruct or hinder an owners corporation in the exercise of its functions under this section” so I would say subsection (6) should be read as saying obstruct or hinder refers to a person obstructing or hindering.
In caj’s case “the damage to his lot … arising out of the carrying out of any work” was the damage done by drilling the locks and NOT by a person hindering or obstructing. Thus the OC is liable.
I am willing to be corrected by any lawyers out there!