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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*)
In the circumstances you outline, under the Land and Property guidelines (https://www.lpi.nsw.gov.au/__data/assets/pdf_file/0010/163297/2011_07_Defining_who_is_responsible_for_items_in_a_Strata_Scheme.pdf) the Owners Corporation is responsible for the door and the owner the motor.
As I understand it the problem with the old one is “heavy and needs replacing, causing an upper back injury”.
Why does the owner need a new door if a motor is attached to the old one?
From my experience the owner might argue that even if a motor is put on the old door they are still going to hurt their back if the opener malfunctions and they have to open it. The question then becomes, is this door any harder, heavier to open than the other garage doors in the strata?
Jimmy, from what I understand from your article here:
the nuisance rule will also apply to smoke from smoking.
Our strata has passed although not registered a ‘no smoking’ by law. As we want to be a ‘smoke free’ strata. One of our residents has said the new law takes away the need for registering the ‘no smoking’ by law.
I told them it didn’t. In my view under the new laws a person could still smoke and it would be up to someone else to complain and put on record that it was a nuisance to them. Whereas if we register the ‘no smoking’ by law there is no need for a person to complain or record that the smoking caused a nuisance to them.
Having regard for how ‘shy’ some residents who complain are to go on record I have requested that we proceed with the ‘no smoking’ by law registration.
@axcelius said:
Hi guys,Where do you think the problem originates from? Can they not manage incoming ? Do they simply not care because they will have clients anyway?
My view is that the problem (if there is one) often originates from the fact that being on and doing work for the Owners Corporation (Body Corporate) is a voluntary, non paid, often thankless task. In many OCs and Executive Committees (ECs) that I have seen the attitude of owners helps to promote a ‘us versus them’ mentality.
People who aren’t on OC don’t want to get involved in the overall management and maintenance of common property. However, when they experience a problem affecting them personally they expect the OC to fix it and listen to their problem in priority to all other problems.
Often members of the ECs form the attitude that because they are unpaid and not thanked for doing things that no one else will they are entitled to special treatment when it comes to getting their own problems addressed and obtaining special privileges.
Of course, some members of ECs are just control freaks and self obsessed individuals.
I had a similar thing happen to me a few years back.
What I did was; at the next AGM when the approval of the prior years minutes came around, I told the meeting that I wanted to put on record that the minutes were inaccurate because of ……..
Before the meeting I had spoken to a few other owners and explained why I couldn’t accept the minutes of the previous AGM and needed them to be corrected by way of a note in this year’s minutes. The owner’s I spoke to acknowledged the minutes were inaccurate and made me look bad. I told them if it could happen to me, it could happen to them.
When the chair asked for a vote as to whether my views should be included. The vote went my way. The secretary was not happy.
Kiwipaul is correct but I would qualify one thing. The “Who’s Responsible” publication put out by the Institute of Strata Title Management provides that if the opening mechanism was installed after registration by the owner the opener is Owner responsibility. I copy from clause 15 page 8:
Garage Doors: If they were there on the registration of the strata plan, then they are the responsibility of the owners corporation (The OFT takes the view that garage controller is classified as the lock and door closer for the garage door albeit it being electric. Therefore as with the main lock and door closer to a unit’s entrance door being OC responsibility, so is the controller). However, if they were installed after by the owner, then they are the owner’s responsibility.
littlevoice, on ‘where do I stand’? my view is the OC is correct (technically anyway).
I have a slightly ‘off topic’ question! What are Strata Seals?
Should each Owner’s Corporation have a seal. I have been in our strata and on the EC for 10 years and we have no seals. We just sign for and on behalf of Strata Plan XXXXX. We have never been asked for Strata Seals!
I am not sure they are abandoned.
Stuffy’s post said ” but the owners of one of the flats have placed all manner of items on the common courtyard and have stuffed the common storerooms with their storage items.” (emphasis added)
I guess the issue is can the goods be linked back to the owners.
I will leave it to others that may have had experience of the section of the Act referred to below. However I would say that after fair warning that if the relevant owners doesn’t rectify the problem not only could the OC remove and dispose of them but charge the costs back to the owner. Fair warning, to my mind, would need to include reference to the relevant sections of the Act and set a reasonable time deadline.
STRATA SCHEMES MANAGEMENT ACT 1996 – SECT 63
What power does an owners corporation have to carry out work and recover costs?
63 What power does an owners corporation have to carry out work and recover costs?
(1) Application of section This section applies if a person who is required to carry out work as referred to in this section fails to carry out the work.
(3) Work required to be carried out under term or condition of by-law An owners corporation may carry out work that is required to be carried out by a person who is the owner, mortgagee or covenant chargee in possession, lessee (or, in the case of a leasehold strata scheme, sublessee) or occupier of a lot under a term or condition of a by-law and may recover the cost of carrying out the work from that person or any person who, after the work is carried out, becomes the owner of that lot.
(4) Work that is duty of owner or occupier to carry out An owners corporation may carry out work that is required to be carried out by a person who is the owner, mortgagee or covenant chargee in possession, lessee (or, in the case of a leasehold strata scheme, sublessee) or occupier of a lot in order to remedy a breach of a duty imposed by Chapter 4 and may recover the cost of the work from that person.
Sort of related …. seems smoking everywhere is getting a bad name and being prohibited (and so it should).
CHINA’S capital has passed a smoking ban for all indoor public places and offices,
full story …
@scotlandx said:
Maybe no-one should ever go outside Daphne?To answer your question CharlieBoots, the current laws and regulations haven’t changed.
Refer here re the proposed model by-law, which I believe may have been shelved.
But there is nothing stopping you putting up a by-law like that to the OC for approval.
Refer also here:
https://www.cancercouncil.com.au/wp-content/uploads/2011/10/Case-studies1.pdf
The other option is to progress an action on the basis that those owners are causing a nuisance under section 117 of the Act, which was successful in the Highgate case. It is not correct for your strata manager to say there is nothing they can do, so I would suggest that you go back to him/her and tell him you have a legitimate complaint and that you expect to have it taken seriously. If necessary put it in writing.
Charlie, From experience I would highlight scotlandx’s reference to the Highgate case and the law re general nuisance. Smoking is accepted to be a nuisance these days.
The other part is gathering and submitting to both the OC and the strata manager the evidence that it is a nuisance to you and denies the occupantants of your unit “The quiet enjoyment of your property”.
Evidence could include, statements about times and dates by occupants, videos, pictures or even air samples (a bit more involved and costly).
Help, The strict rule is ‘no parking on common property’. We have a similar issue at our complex, in practical terms the issue is “who does it cause a nuisance to allowing someone to park there?”
I would say that the Secretary/Treasurer would ONLY have an factor in his/her favor for the strict rule to be overlooked IF the ONLY person it caused a nuisance to was him/her. Obviously parking there causes you a nuisance so it is NOT acceptable.
However, ignoring the strict rules can come back to bite you, so my advice would be to try other avenues first. If you do end up trying it, you need to gather evidence that the Secretary/Treasurer’s daughter did it before you (evidence being correspondence, pictures, videos and/or diary notes).
Hi Missy, are there any potential OHS, property or personal injury issues for the OC if they delay or deny approval?
I have seen a case where an owner put to the OC that if they deny or delay approval and the subject tree causes injury or property loss the OC could be liable.
This particular case involved trees hanging over an access route to one unit. After it was pointed out to the OC that if someone using the access was injured they they might be liable, the OC was quick to approve trimming.
I would recommend a gradual escalation of the problem. First making it non specific then getting more pointed.
One way to approach it would:
1. request the EC send out a letter to all residents reminding them of their obligations in this regard.
2. If it persists ask the EC to send a letter specifically to the offending neighbours.
3. If it persists after that there has to be a formal complaint made (by either you or the EC) and then a notice to comply issued.
thanks jeff,
I do stand corrected! The reference you make would appear definitive that the GST regime does indeed apply once levys get over the threshold.