[isydowner]

Hi Whale,

I am unsure of your advice with this one, as it simply doesn’t seem to be a strata issue to me.

If the strata manager has written a notice to comply… He / she must be watching Judge Judy or some other tripe on the TV to have issued this without hearing ‘both sides’ of the story… Besides, it may be a police issue and the strata manager has just stepped over the line (unreasonably biased).

I wouldn’t call this strata managers conduct unusual… I’d call it outright petty and possibly even bitchy… but fundamentally unhelpful as it can only be considered inflammatory (as proven by this thread)!

It seems the issue has been elevated to the point were parents are using their kids to harass other owners… and that is nothing short of disgraceful. Either way, if parents don’t get one with each other it’s simply the kids who will suffer!

 

Rebekah,

I’d insist the strata manager forward you a copy the written complaints to assess for yourself, together with the agenda, motions and resolutions passed that resulted in the issuing of a notice to comply.

Then, once you have the full documented facts in front of you, I’d calmly consider how best to resolve your differences with the other two neighbours with the goal to start acting reasonable towards each other.

Do this before ANY of the kids start to suffer for what appears to be a petty dispute.

As for the Strata Manager, instruct them that you will personally hold them fully responsible for any ‘fallout’ as a result of their unprofessional conduct!

What a mess, if it seems like it cannot be resolved and you only rent, consider moving somewhere less ‘lord of the flies’ but don’t inflame tensions with your neighbours until at least you can assess their complaints for yourself.

Its worth considering that kids do tend to ’embellish’ when reporting back to their parents and while I’m not taking sides on this one, that’s usually a good ‘excuse’ to help defuse an otherwise silly situation… who knows!?!

No matter who’s at fault, it might be more productive to simply apologise for kids being kids.

Remember, strata living is not suppose to be a prison or school yard… but a ‘community’ environment were we are suppose to look out for each other, not act as bully. I have a niece who committed suicide over bullying, so I hope you can all patch things up well before it goes too far… or you’ll all regret it!

Thom

[isydowner]

Hi Flanet,

Sounds like a right dilemma to me, but my experience with Fair Trading was very positive… Although the inspectors lack the power to make important sanctions, you may be left with the Tribunal who in my opinion are a cancer to NSW Strata Schemes (just my opinion of course).

I’d be inclined to start with lodging a complaint with the Strata Section (make sure it’s not the building section) of Fair Trading and get the ball rolling. You Strata Managers should be investigated by the inspectors and your concerns viewed by a Government Dept. at least.

If you have little luck, consider lodging a formal complaint with the NSW Fair Trading minister under the Property, Stock and Business Agents Act and then maybe seek to sue your Strata Managers once all owners are aware of where their money is being spent.

Also, go to a NSW Court of Law and avoid the Tribunal… it’s not worth your time and effort and it is likely your strata manager will just hire an unscrupulous lawyer to lie outright and they will get away with it… as the unfortunately do most of the time! You might even find out that the former EC members were well aware of these indiscretions, and could sue them directly if that’s the case… They’re no longer covered by ‘your’ office bearers insurance if they have sold up.

I feel sorry for you really, but this is strata in NSW for all of us. If you want justice, don’t bother as it doesn’t exist in Australia… This was the advice of a well respected Strata Lawer to me… he added that the most you can hope for is monetary damages!!

Best of luck,

Thom

[isydowner]

Hi Johnchan,

I am unsure  why you are considering even staying in an apartment that requires annual mould cleaning from one wall (doesn’t that tell you the wall itself is the issue) and whatever other cleanin you ‘have’ to do!

Is your rent very low or even free? As it’s a veritable death-trap your living in.

Considering you have young children, I would suggest you look to rent elsewhere for a property that doesn’t have such problems to avoid harm to you children’s lungs etc.

A fly screen is the least of your worries mate! Do yourself and your family a favour and find somewhere were moisture is not an issue. Your landlord and the OC ought to be ashamed of themselves!!

Thom

[isydowner]

NCAT is pretty bad, but you should write to the principle registrar asking for detailed reasons as to why those other breaches were not actioned.

That way the Tribunal can be held to account, the Tribunal member justify their decision and if required… You can use it all in court for future proceedings or send it to Victor Dominello to show him how great a job his tribunal are doing.

Then again, they usually have an hour and a half to dispose of an application so we can’t blame them too much… but should blame them for any shitty decisions not in the interests of NSW public… Usually the owners not on the EC.

My honest opinion is that the Tribunal are a useless shower, and should be disbanded in favour of a Tribunal that applies the law. If the Tribunal member doesn’t apply the law, they should be discharged from working at the Tribunal for up to 10 years.

Im curious, has anyone on here ever gotten a decision that makes sense from the Tribunal? I’d be curious as I’ve effectively had my balcony stolen, and this theft approved of by the Tribunal!

Thom

[isydowner]

I think you’ll find that the Strata Manager ‘assists’ the committee as a whole, as does the Building Manager and both must follow instructions put in writing from Executive Committee or General Meeting Minutes.

If the Strata, Building Manager or an Executive Committee act independently without written authority from either the Owners Corporation or Executive Committee as a whole… they may be held personally liable for theirs actions may be deemed in Ultra Vires by NCAT or a Court of Law.

I get that an EC member can be nominated as a point of contact, but they must follow instructions by the Executive Committee as a whole and Act only as a single point of ‘communication’ for those decisions.

Although managers might ‘like’ a single person to deal with, they act on behalf of the Owners Corporation and are paid by all Owners through levies. They must act in the interests of ‘all owners’ and if they don’t, sack them for breaching their contract as they will only cost owners in the long run when someone decides to sue the scheme.

Hate to sound pedantic, but this should be common sense… A Chairperson is not elected as Hilter (their own personal scheme) and should never act like it!

[isydowner]

Hi Ken,

I would suggest performing your repairs during reasonable working hours, as per your local Council Requirements – usually no works to be carried out between 10pm until 7am Monday to Friday!

Again, if an owners tiles have been damaged by a failure in the common property… your OC should pay for common property repairs and any subsequent damage caused to your private property (tiles, grouting, plumbing, membranes etc.).

If damage caused to your tiles was due ‘solely’ by your tenant / yourself, then I would suggest you cover those costs and maybe seek those monies from your insurance if you have any.

If your neighbour was verbally abused by another owner; tell them to report it to the OC (so that they can issue a notice for the same by-law breach you already mentioned).

Alternatively, they can call the police or your local council so that a warden can attend your scheme if the situation affects the general safety of (all) other residents.

[isydowner]

Your very welcome Strata Bunny,

The 50% precedent thing is otiose if faulty membranes affect the majority of lots as everyone will pay through levies.

Maybe your EC should consider repairing them all at once to minimise costs and maximise efficiency.

All the best with this,

Thom

[isydowner]

Hi Strata Bunny,

I agree with Whale 100%, but would also be seeking any damage caused to personal fixtures & fittings as a result to the defective membrane in the shower recess!

You may need to get an Expert Report (see Sponsors to flat-chat) but NCAT should make an order for the repairs (and damaged fixtures / fittings) to be carried out. Make sure your Expert Report makes note of any ‘lateral transfer’ of water and or ‘capillary action’ that most likely damaged your “internal wardrobe side wall plus the carpet” as neither you nor your tenant are the cause of that damage.

I do not agree with your comment that you are “fully responsible for repairing the damage to the internal wardrobe side wall plus the carpet” which in my opinion is how the problem became apparent… unless you have spider-senses or can see through solid structures (such as the shower base)!!

You never know, your OC may agree at mediation to pay for it all, as they should!!!

Importantly, I think you should submit an application for Mediation (NSW Fair Trading) at the same time you issue your Letter of Demand (Whale’s advice) so that you can get things moving more quickly.

Good luck and I really hope your EC do the right thing by you.

[isydowner]

Hi Felix, JimmyT, Whale and Scotland X;

In order to simplify things (for myself and others), is this the process of properly passing a Special Resolution;

1. Special Resolution (SR) is placed on the Agenda of a duly convened General Meeting of an Owners Corporation (OC):    Note: Duly Convened being full and proper notice given to ALL members of the OC pursuant to the Regulations.

2. Motion called for and VOTES are counted per Unit Entitlement (UE) for SR under Poll Vote rules. Note: Abstention VOTE(s) not counted; No VOTE(s) cast are counted by UE; and Yes VOTE(s) cast are counted by UE.

3. YES and NO converted to percentage of Total VOTE(s) cast. Note: The TOTAL amount of VOTE (s) cast are added (UE) to establish what 100% of the VOTE (s) cast are worth.

4. If NO percentage is worth more than 25% then the SR is defeated; and

5. If YES percentage is worth more than 75% then the SR is resolved.

Abstention VOTE(s) reduced the percentage threshold of UE counted at a ratio of 3:1 (YES:NO) indirectly favouring NO (Status Quo) as it is less onerous to obtain – Voting YES or NO is more not only more preferable, but means you are getting your say by NOT sitting on the fence!

 

Also, JT’s (very concerning) comment that “A powerful minority can railroad an owners corp into making bad decisions then make it very hard to rescind them once the damage is done.” means that any member of the OC that doesn’t Vote or Abstains from voting has only themselves to blame when a bad decision costs the OC (all owners financially) in the long run!

Get out and vote seems to be the important message here and whatever you do just don’t sit on the fence (Abstain) – Ask inquisitive questions of your EC or Strata Manager prior to voting so that you can ascertain for yourself if you agree the proposed SR should pass!

[isydowner]

Hi Scotland X / Felix,

Whilst I agree 100% with Scotland X… I’d be more concerned that your Chairman IS your Strata Manager and a clear conflict of interest exists. Maybe have a motion placed on the next agenda to seek another Strata Company take over to ensure no conflicts otherwise exist!?!

An abstention to me is to stick with the ‘Status Quo’ meaning to leave things ‘as they are’ but the above suggests the No’s and Yes’s must be counted by Unit Entitlements against each other… You strata manager sounds a little Hitler’esque to me… and I’m assuming you voted ‘No’?

Good luck at your next meeting!

T.

Call me paranoid, but I removed a link in the above to a “fact sheet” produced by a particular Strata Management Company, firstly because it’s their document that’s intended for use by their Clients, and secondly (and more importantly in my opinion), because it merely serves to confuse rather than to confirm voting procedures. It’s worth noting though, that the position of Chair is delegated by the Owners Corporation to the Strata Manager in their Agency Agreement, which as the “principal manager” the O/C (or more specifically its elected Chair) can take back permanently or just for a particular Meeting – Moderator (Whale).

[isydowner]

Hi kingst,

You need to find out who is at fault first (Builder or OC) prior to requesting “Should the body corporate reimburse me for lost rent?”

Assuming it is common property that’s at fault, your OC (through its servants and agents);

1. Are charged with looking after CP, meaning you cannot fix it yourself and are therefore ‘vulnerable’ in a ‘negligence’ sense;
2. Can seek to have the builder do proper non-makeshift repairs, providing your building is within the applicable warranty periods;
3. Can take the Builder to NCAT; or you your OC (if they won’t act voluntarily) to get it rectified properly – Depending who’s holding things up at this stage;
4. Can make a claim with the Scheme’s insurance policy to pay your Lost Rent and or other Damages / Costs – although I might have read somewhere that you can make a claim directly with the insurer as a member of the OC (whale or anyone?)!

If all else fails, you might need to initiate Court Action to recover costs… and hopefully (for you OC) the Schemes insurer may cover that action.

BTW Hidden mould is very dangerous: until the ‘source’ of water entry is corrected, your property will remain uninhabitable. It would also be unconscionable for you to rent it out to any unsuspecting tenant!

Hope this helps both you and your OC, I wish you the best of luck with it too… especially if you need to rely on NCAT (No-Clue at All Tribunal)!!

Thom

[isydowner]

Thanks Whale,
I am always learning new things from your posts (always level-headed) and relied on them heavily myself… especially my issue with a neighbour (under EC instruction) using my balcony as a dumping ground!

I suspect like you that the Tenant told the Building Manager (as the OCs servant and agent) prior to ‘kingst’; and in doing so the OC had been made aware before ‘kingst’ started to lose out on rent. Whatever decision his OC made, it failed to rectify the cause of the ‘mould infestation’ being the common property.

This all relies on a sect 62 (3) resolution not being passed by the OC as required. Of course, if a sect 62 (3) resolution was passed and mould did occur, then a claim in negligence could liable the EC if they took it upon themselves to ‘choose’ not to correct the issue.

Hopefully ‘kingst’ will give us some more insight into his dilemma, and if his OC (or EC) are worth their salt, they’ll fix his leaking roof promptly.

Mould (toxic) is far too dangerous to ignore and everyone knows how unhealthy it is to live with!

Thom

[isydowner]

Hi Whale,

Im not sure I agree with you 100% as ‘damage’ has been caused and the property deemed unihabitable (hopefully by an expert) with the recent McDonough v The Owners Strata Plan No 57504 cas confirming that damage (to personal property, being Lot Property) caused by a failure of common property amounts to a negligent act.

My Strata Lawyer who looked after this case said as much.

Also, why would an insurer pay for an Owners Corp not looking after ‘their’ common property?

Or am I wrong in thinking an OC failing to look after their ‘roof’ is a defined (or expected) event?

Whilst I get what you are saying, being a lot easier than mounting a court case, surely a landlord should not have to double up by arranging insurance for its tenants actions AND those of a dysfunctional or lazy OC?

As you probably know, I have had part of my balcony ‘stolen’ by my OC, surely they are suppose to look after the interests of ALL owners in the spirit of democracy!

Hope my opinion does offend and if love to hear your ideas, as I respect you so much, but as Jimmy said similarly in a former post… If you EC(OC) and not looking after the common property for all (selflessly) then move on and let someone else who wi

My lawyer reckons it’s only a matter of time until the Thoo decision is overturned and it will most like be a case regarding ‘habitability’ that will overturn it… Time will tell!!

[isydowner]

Hi Alleycat, I believe your Strata Manager should know from the OCs records who the supplier rather than the retailer is an may have a contact number / email.  

Alternatively, your retailer should be able to tell you and your local council will also be able to do this as well… I had to contact them for a similar purpose and they gave me the correct contact details!

If your having trouble with them, Fair Trading will definitely help but they usually fix this kind of stuff quickly through independent contractors!

I hope this issue gets fixed quickly for you, and your SM provides you assistance to get it done all the quicker. Your feedback should also be well received by your OC in case other owners need to do the same, which I am sure they will have to at some stage.

[isydowner]

If it’s inside your kitchen cupboard, I reckon it’s between you and your gas company.

The OC shouldn’t be considered a ‘bank’ provided the damage was not done by their actions but it sounds like you’re very quick to ask them to pay rather than your gas company!

The provision of gas to your apartment is usually the responsibility of your gas company… Have you asked them to fix ‘their’ equipment being the gas meter?

Surely your OC aren’t measuring your gas usage and billing you for it every quarter?

sorry, not trying to be harsh but it I was a member of your OC I would not be happy your asking me to pay, through levies, for something I cannot control!

[Author]

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