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Th Hood seems to be having a bet each way above. I would just point out that there is a difference between expecting an owners corporation to enforce its by-laws and demanding that a strata committee or strata manager issue a notice to comply’ The Act possibly uses the word “may” to indicate that this is only one way of many to deal with issues, but there are others, such as negotiation and written warnings.
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Section 258 Tenancy notice to be given to owners corporation of leases or subleases may also apply here, although if to an owner, sub-clause 5 would probably apply.
OK, this (below) is what Sam is talking about, just in case you haven’t committed the Strata Act to memory. FYI, it might only apply to car spaces that are separate lots rather than common property car spaces subject to exclusive use provisions.
By the way, this is exactly the kind of question that Fair Trading will decline to answer definitively and NCAT will say is a Fair Trading issue.
258 Tenancy notice to be given to owners corporation of leases or subleases(1) If a lot is leased, the lessor must give notice of the lease, in accordance with this section, to the owners corporation not later than 14 days after the commencement of the lease.
Maximum penalty—5 penalty units.(2) If a lot is subleased, the sub-lessor must give notice of the sublease, in accordance with this section, to the owners corporation not later than 14 days after the commencement of the sublease.
Maximum penalty—5 penalty units.(3) If a lease or sublease of a lot is assigned, the assignor must give notice of the assignment, in accordance with this section, to the owners corporation not later than 14 days after the execution of the assignment.
Maximum penalty—5 penalty units.(4) The notice must be in writing and specify—
(a) the name of the tenant and an address for service of the tenant, and
(b) the date of commencement or assignment of the lease or sublease, as the case requires, and
(c) the name of any agent acting for the owner in respect of the lease or sublease.
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Re Jimmy-T writing that the current BCA requirements on balustrades does not apply unless . . . . . .
Surely this has been overturned by the Doherty case decided by the Appeals Panel in September, 2021?You’re right, although the NCAT Appeals Board decisions are not “settled law” and can be overturned by a higher court (as in the Coopper pets case).
Nevertheless, judging by this article and this one, Tribunals are more likely than not to insist on common property being brought up to scratch.
NB: To avoid confusion, I have corrected this in my earlier post.
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The telecommunications laws do compel you to allow companies to have access to the block – but it’s not open slather. You are entitled to ask what their plan is and what changes that would make to common property, including the ability for other future and existing providers to operate freely and without any impact on their services.
A lawyer’s letter to them explaining that access will not be allowed until you have more detail about their plans and its impact on other services and common property, plus compensation they propose to offer for use of common property and electrical supply, would be entirely appropriate.
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This strikes me as a case where some mildly sensationalised media coverage might help: “Bank sniffs at $20k strata sewage repair debt.”
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Is there any timeline that a builder must fix the issue by under law? I can see they will just drag their feet until the warranty runs out.
If the problem is identified and established in documents during the warranty period, it doesn’t matter when the warranty runs out.
Out of curiosity, who arranges this? If it is common property, OP shouldn’t have to deal with this and pay out of their own pocket to get this done right?
If it’s common property, the owners corp must pay. If they delay repairs and it’s affecting your lot, you can tell them to fix it or you will. Then make it clear that you will charge them for the costs and if they refuse to pay, you will also make sure they also pay your costs for taking them to the Tribunal to get payment.
Do you have the right to do that? This is what sections 106 (1) and (5) of the Act say:
106 Duty of owners corporation to maintain and repair property(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.
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The strata committee has obligations and they can be compelled to fulfil them.
But how are they actually “compelled”?
It depends what you mean by compelled. Nobody is going to come and hold a gun to their heads. But if orders to fulfil a function are issued by NCAT and the committee ignores them, they are straying into murky waters, at the deep end of which lies the appointment of a statutory manager. That means the removal of all owners corp powers from owners and their committee and a world of pain for two or more years.
Has a Committee itself ever been individually fined or otherwise penalised by a Tribunal or a Court?
Penalties would be against the whole owners corp, not just the committe or individual members. The committee represents the owners, for better or worse. And those penalties include the option for the tribunal to sack individual members, the whole committee or remove officer bearers from their roles on the committee.
If so, I think I’ll be resigning from all the Committees that I’m a member of and my Chair role too. It’s all done voluntarily with my best intentions, due care and diligence. And that seems to be the limit of what I am actually compelled to do.
Are you saying that you wouldn’t enforce by-law breaches if it didn’t suit you? In that case, maybe you should consider your role on the committee.
Owners elect committees to represent them and part of that is to run the building according to strata law and by-laws. Notices to comply don’t even require mediation. It’s a simple process. I don’t see what the problem is. If the by-laws are wrong, change them at a general meeting. Otherwise, surely you should be expected to do what you were elected to do.
Having a statutory duty is all very well but failing to actually give an OC/BC or a Committee any authority to actually enforce that statutory duty makes it a moot point. Issue a breach notice? That’s just a warning. Not much enforcement authority there.
In NSW, a Notice to Comply is as much of a threat as it is a warning. NTCs basically say “stop breaching by-law X or you will be subject to fines”.
There is a recent QLD case where the Adjudicator made a comment on this …
But we are specifically talking about the NSW Act and just because the Qld Act specifies that bodies corporate have an obligation to enforce by-laws, and NSW doesn’t spell that out, it doesn’t mean the obligation doesn’t exist.
See my previous comment about the Second Reading of the Act. It’s crystal clear that the obligation exists and there are remedies should committees choose not to fulfil their responsibilities.
Regardless, if an OC/BC Committee doesn’t attempt enforce its by-laws/rules or actual laws what’s going to happen to the Committee? Not much in reality. So it’s not really “compelled”.
Perhaps that is the case in Queensland but in NSW if, at any point in a dispute an NCAT member feels a strata committee and its scheme have become dysfunctional, the Member can, by their own volition and not requiring an application by an owner, appoint a strata manager to take the reins. Trust me, that is an outcome no one enjoys. Often, that includes the strata manager, who can become the focus of owners’ anger and frustrations.
Also, judging from the discussion we had on the recent David Bannerman “lawyer in the hotseat” webinar, when schemes are showing signs of significant dysfunction, rather than pick and choose who’s at fault, the Member will just pull the plug and appoint a strata manager.
I’m pretty sure a refusal to obey an order to enforce a by-law would be more than enough of a trigger. If that doesn’t create a sense of compulsion among committee members, then they probably deserve to be sacked.
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Not sure why one would take the committee (the OC in fact) to mediation or NCAT on this. The OC’s ‘duty’ in this matter is where in the Act? I think you might find there is no express obligation to act on this complaint.
Not so. Just because the obligation is not spelled out in the Act doesn’t mean it doesn’t exist. Former Fair Trading Minister Victor Dominello told me himself that he made this clear in his second reading of the Act back in 2015.
If you care to check Hansard you will find, he said, in reference to Section 232: “Members of the strata committee will now have a statutory duty to act for the benefit of all owners and to exercise due care and diligence in their role.” That is why section 232(2) exists, to compel committee members to fulfil their obligations under the Act. This is what it says:
The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following—
(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme.
It could not be any clearer. The strata committee has obligations and they can be compelled to fulfil them. If this is not the case, please quote an instance where such an action has failed because it was incompetent in that regard.
Just as an aside: there is case law (Supreme Court) that says the OC is not mandated to Act on by-law breaches.
By “not mandated” do you mean not empowered to or not compelled to? Either way, please quote the case and its relevance to this issue, as it would undermine the whole premise of strata laws and by-laws if strata committees had neither the power nor obligation to enforce their by-laws.
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I love the headline on this on the Current Affair website:
Veteran’s battle with body corporation
They clearly weren’t sure if it was “body corporate” or “owners corporation” so they went with a bit of both (sigh).
Also, how does anyone feel about an agency saying, “Mate, let’s find you a nice third-floor flat in this area in a block with a lift’? Is there even such an agency that would do that? Maybe a smart real estate agent could see an opportunity for a bit of business and some feelgood action.
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Amazing how they always manage to make the strata committee out to be the problem, without any knowledge or regard for the fact that the OC is bound by very restrictive laws about what they can’t or must do.
I once contributed to a piece for Channel Seven about defects in strata building and how developers were getting away from their responsibilities. The flashy promo was “Strata committees are out of control!” Helen Wellings must have been deeply embarrassed by her incompetent, ignorant colleagues.
As a wise person once said, what the dead and the stupid have in common is that neither is aware of their condition.
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I would avoid using any reference to relocating the piping and instead refer to “extending the connection”. That way you are not changing the plumbing. You might even add that the existing plumbing will not be affected and that this will only be an external connection.
BTW, having recently read a report about the effect of internal gas burners on general health, especially of children, and with the environment in mind, I will be going for an electrical induction stovetop in my next kitchen reno. May be worth considering before you commit.
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I’m wondering if there needs to be a by-law amendment (although that would be the correct procedure). The OC would still have the responsibility for the physical space in terms of maintenance etc, regardless of who parked there.
I would think a jointly issued letter to the committee saying the owners had agreed to exchange the use of the parking spaces untileone or other or both decided to rescind the agreement (in writing) would formalise things.
The only potential problem I can see is if one owner or their tenant misused the parking space in some way, or the property changed hands and the new resident had to be told they were parking in the spot nearest to their unit.
Can’t see many people having an issue with that… but then, this is strata.
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I had an inkling about being able to get a court order allowing you to garnishee the rent from the property, so I’m glad to see our legal eagles have confirmed this possibility.
As for costs, I believe the reasonable costs of recovering strata debts can be added to the debts themselves (check with the lawyer you will need to pursue this).
And in the meantime you can get a strata loan to allow you to hire the lawyers to get your money back.
I’m curious to know why your strata managers didn’t suggest this to you. In the meantime, if you can only recover the last six years’ levies, as suggested above, then you have effectively given the slack owner a 40 per cent discount. Ouch!
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Good on you! Let us know how it all pans out.
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The reality of strata living is that many established buildings just trundle along, with no one able to explain why they do things a certain way except for “we’ve always done it that way”. That doesn’t make it wrong – just hard for new residents to grasp and their neighbours to explain.
You are right to want to know what your scheme’s responsibilities are but there is probably a better way forward than challenging everything that doesn’t seem right.
The fire safety question is a typical issue. Owners in older strata schemes live in fear of a fire safety inspection, in case the local council comes along and orders them to undertake expensive upgrades. However, we tend to forget that there are fire safety measures in place to protect us from the consequences of fires.
Locked fire doors, disconnected automatic door closures, disabled smoke detectors and blocked exits don’t matter until they do – and then they matter a lot.
As for being fined for some failure to abide by strata law – that’s not going to happen. There are no StrataKops prowling around looking for flaws and failures.
The worst that could happen is that an owner or tenant complains about some lapse, takes it to Fair Trading for mediation, then the tribunal (NCAT) where they have orders issued and the committee decides not to obey the orders.
THEN you get fined but there are so many steps along the way at which the committee or owners corporation could put things right that it’s easily avoided.
My advice to you would be not to stop, as a fellow committee member has asked, but dial it down a bit, get more focussed and do it from a position of knowledge rather than challenging everything you don’t understand. Pick an issue, research it as best you can and then, if need be, ask the questions.
You might consider joining the Owners Corporation Network (ocn.org.au) which has a terrific reservoir of accumulated knowledge and where you can directly contact other owners who’ve been through the same issues as you.
Right now, you are challenging people who may have no better idea of what’s going on than you do, and that will scare them.
Be a problem solver rather than a trouble-maker but be aware that identifying a problem where others think none exists puts you from the first category into the second.
I strongly believe there are no strata schemes in Australia that are fully compliant with all their strata laws and regulations. But strata is an organism that evolves to meet the needs of its residents and the community as a whole.
Your first challenge is to get your fellow committee members back onside. I find chocolate muffins and a quiet concession that you may have overstepped the mark work a treat.
Then you can start addressing issues in order of their importance and legal requirements, especially with the new strata Hub coming into effect at the end of next month.
The first cab off the rank could be the 10-year maintenance programme. You should have one but, the way the law works, you don’t even need to set aside funds for the work. That last part should calm a few nerves.
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