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don’t wait .
Good advice. If you wait until the owner sells, getting this changed by the new owner is a whole other legal quagmire.
the first thing the OC should do is issue a notice to comply. Look at your bylaws but there will be one about damage to common property.
I’m not sure it’s that simple. The owners corp is entitled to decide:
- whether or not it wants this change to the outward appearance of the scheme
- who has responsibility for the upkeep of the new structure?
- whether the owner is required to compensate the OC for any use of common property
So the owner should be approached and asked to provide a by-law for the OC to consider, which would include the lot owner accepting responsibility for the structure, compensation for the OC (if appropriate) and agreement to cover all legal fees in setting up the by-law.
In the meantime make two calls – one to an experienced strata lawyer, the other to the local council as this would almost certainly require council approval.
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Firstly examine whether you can do anything to reduce the noise, even if you believe you are right.
That should have been my first and main point. Talk to your neighbour and try to get to the root of the problem to see if it can be resolved amicably.
They can ask for mediation, in which case a compromise may be agreed.
A notice to comply does not require mediation, which is not part of that process. It’s warning that if you don’t stop breaking by-laws, you could be taken to NCAT where fines could be imposed.
It’s up to the OC to prove you are a nuisance … they would need additional reports such as police records and acoustic reports to solidify their case.
First part is true – proof would be required – but police and acoustic reports are unlikely to have anything to do with this. The strata committee might need corroborating evidence if they pursue this, but that could be stat decs from other residents who have also heard the noise. There is no police involvement (as has been stated) and, in any case, how would you get acoustic reports and what we they be on?
The problem may just be the neighbour and thst could be flushed out at mediation.
Once again, there is no mediation involved in issuing a Notice To Comply. It’s a “cease and desist, or else” warning.
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I note the point about police not having been called, but this is irrelevant. The fact that it is only one resident who has complained is also of very little concern.
The key issue is whether or not your late night chats in your backyard are unreasonably disturbing the neighbour’s peaceful enjoyment of their lot (a right that its protected by strata law and, probably, by your by-laws too).
If you, your family and friends are making noise, even just by talking, to the extent that the resident of an adjoining unit is, for instance, kept awake at night, then you may well be in breach of the law and by-laws.
As to what to do next, a Notice To Comply is an opportunity to moderate your behaviour so that you and your family and guests aren’t breaching by-laws.
If you don’t think you are making too much noise, and the complaint is false, keep doing what you’re doing and see what happens next (probably an application for a fine at NCAT).
But if alcohol is involved, you may not even be aware of the noise that you are making. So think about it before you go to the barricades on this. Take your late-night chats inside after, say 10pm – then everyone will get some peace.
Also, if you have the slightest suggestion in your mind that this is your home and you have a right to do as you please, prepare yourself for a potentially long, costly and nasty battle that may end up with you being fined AND having to moderate your behaviour anyway.
He has presented his diary notes to the strata manager, he is not on the committee … the strata manager has acted on his complaint based on his diary notes and without committee endorsement or sanction
The strata manager doesn’t need the endorsement of the committee to issue a Notice to Comply. Also, it makes no difference whether or not the neighbour is on the committee.
There seem to be a couple misconceptions here about how strata works. You may do well to read the factsteets produced by Fair Trading to get a better idea of where you stand on this and other issues.
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updating this … the legislation allows for the holding of > 5% of proxies if the proxy is ‘Prescribed’…
I presume this means if the Proxy specifies what/how to vote on? Would Prescribed proxies then count towards a quorum?A quorum is just a head count of people (or proxies) present and able to vote. How they plan to vote is irrelevant.
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all other solutions are pretty much unworkable, illegal, temporary or not affordable.
I know plenty of strata schemes that adapt their by-laws and practises to suit their particular circumstances. Like the one that periodically parks a committee member’s car, with wheel clamp attached, under the sign that says illegally parked cars will be clamped.
Or the one that puts up a sign warning drivers that illegally parked cars have been vandalised and the oweners corp takes not resposibility etc etc.
Neither of these signs is legal but who’s going to call the cops (or Fair Trading or whoever). When you consider how hard it is to get owners corps to follow the law, how hard will it be to compel them to limit themselves to the ‘black letter’ of strata laws.
Yes, you’re right, the law is deeply flawed, but that doesn’t mean you have to give up. All it takes is a little imagination and a desire to actually do something.
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… if there are by-laws to allow only certain people such as owner-occupiers and immediate relatives to utilise the facilities …
The by-law applies to residents. You can’t discriminate against tenants.
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If you have a record that you have asked the question and it has been rebuffed or ignored, I would initiate mediation proceedings at Fair Trading with a view to taking the strata committee to NCAT seeking orders under Section 232(2) Failure to exercise a function (below).
I would also offer some solutions, such as an audit or change of code for garage keys, the installation of lockable bollards and a request to investigate and cost alternative arrangements.
If you install bollards and residents each have a universal key, then only genuine visitors can park there when residents are at home. You might also need security cameras to monitor the spaces to make sure residents are doing the right thing and locking up when their visitors have left.
Regarding mediation, it’s free and just making an application might be enough of a warning shot to get things moving.
Section 232 (2)
Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if—
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
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This is a complicated question and I’m not sure that you have framed it correctly to begin with (partly because it was originally posted in a thread about strata management).
So let me break it down.
I am looking at 2 Owners Corporation Fee Notices. One is for a 24 unit complex: OC Fees = 416.67 per owner per quarter. One is for a 8 unit complex: OC Fees = $398.45 per owner per quarter. I am now looking at the Management contract for the 8 unit complex and I see:
2.0 Fees and Services
2.1 Annual Fees and Services: $3000 approx.There are no fixed fees for strata management service. The can vary from about $280 to $350 or more per unit per year. So your eight-unit block is paying just at the top end of that range. Why would that be? Partly because there are certain basic costs associated with administering properties that would be amortised across blocks with more units. Another factor may be that small units can generate more strife than larger ones because every management issue can very quickly become very personal.
This is a contract that has been negotiated with your owners at some point. they can take it or leave and find something cheaper (maybe) when the contract runs out after three years.
2.2 Additional services paid by hourly rate or fixed fee (paid upon presentation of invoice) –
When is an invoice presented – does this happen at the AGM?I would imagine an invoice for additional services could easily be presented as and when the service is provided, with a 30-day deadline for payment. Otherwise the strata manager would be carrying the costs for up to a year.
We asked for a list of all 8 owners of the complex. (Copying the Owners Corporation register or any part thereof 3.03 fee units plus GST; per copy and if a printed copy of the electronically provided register is also requested 22 cents per page).
Could this really have cost us anything from $220 to $660? Can we ask for the invoice now rather than wait for it to be presented at the AGM?Well, the key here is what “fee units” are. It’s not a phrase with which I’m familiar. The standard prescribed fee for examining strata documents is about $35, but that’s when you go to the strata manager’s office and look at the files yourself. Perhaps they triple the charge for you asking them to dig out the file, photocopy it and send it to you. It still wouldn’t come close to $200.
As for asking for the invoice now, I’d be surprised if it wasn’t forthcoming immediately without your asking.
My advice? Go to the office, pay your fee, use your phone to scan the strata roll and you won’t break $40.
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Sections 46 of the Victorian Owners Corporation Act requires the owners corp to maintain and repair common property. Section 47 requires it to maintain access for services such as garbage collection. (Both sections below).
I’m not entirely sure how you would raise an official complaint about the owners corp, the complaint form seems to be directed at individuals. And VCAT won’t consider a personal complaint about breaches of by-laws until it has been through your internal dispute resolution process
However, it may be that this is another process entirely and you can take it straight to VCAT. The easiest way to find out is by calling one of the advice and support numbers on this VCAT factsheet.
46 Owners corporation to repair and maintain common property
An owners corporation must repair and maintain—
(a) the common property; and
(b) the chattels, fixtures, fittings and services related to the common property or its enjoyment.
47 Owners corporation must repair and maintain services
(1) An owners corporation must repair and maintain a service in or relating to a lot that is for the benefit of more than one lot and the common property.
(2) An owners corporation may, at the request and expense of a lot owner, repair and maintain a service in or relating to a lot if it is impracticable for the lot owner to repair or maintain that service.
(3) In this section—
service includes a service for which an easement or right is implied over the land affected by the owners corporation or for the benefit of each lot and any common property by section 12(2) of the Subdivision Act 1988.
Note
The easements or rights that may be implied under section 12(2) of the Subdivision Act 1988 are those necessary to provide—
· support, shelter or protection;
· passage or provision of water, sewerage, drainage, gas, electricity, garbage, air or any other service of whatever nature (including telephone, radio, television and data transmission);
· rights of way;
· full, free and uninterrupted access to and use of light for windows, doors or other openings;
· maintenance of overhanging eaves.
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First of all, the five-tier system for strata schemes in Victoria is explained HERE. Just click on the link and the factsheet should download to your device.
To answer the question, for a tier 2 scheme (51 to 100 units) a strata managing agent is not a legal requirement but it might be a good idea.
The fact that you are asking that question suggests to me that your scheme might benefit from a little guidance.
As to a “model” if your scheme has a lot of issues and squabbles between neighbours, then you should seek out a contract that is all inclusive with a one-off payment for all services.
If your scheme is settled, you might take a less expensive contract that allows for charges on the basis of work done above and beyond normal duties.
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That opinion is that a lot owner cannot be restricted from using common facilities, that they in fact jointly own, by an OC/BC. And that’s regardless of whether they are an occupier or not.
I suspect that’s how a tribunal would rule. But sometimes a strata committee can find ways of making the miscreants wish they hadn’t misbehaved.
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An Owner… has leased his unit and … now maintains that his ownership entitles him to use of the pool and that the by-law would be unenforceable.
I’m neither a lawyer nor an expert either, but it strikes me that this is both a legal and moral question. That the owner is double-dipping (no pun intended) is beyond doubt. He wants to have his cake and eat it.
Legally, his ownership of the unit probably entitles him to access common property. But does it entitle him to use the facilities?
As we have discovered many times recently, the true power of by-laws is only established when they are tested and the way to test this is to enforce it and see what happens when you get to NCAT to have a fine imposed on the owner for ignoring a Notice To Comply.
Alternatively, if there is electronic access to the pool area, you could cancel the owner’s spare key and let him take the committee to NCAT to have it reinstated (having established an alternative way for him to inspect common property should he need to do so).
Or is this just one arrogant, self-centred individual who might not like, for instance, seeing his name come up in the strata committee minutes every month when it is noted that he continues to ignore the by-laws despite repeated requests to cease and desist.
The question is, how much time, money and energy do you want to expend on this. After all, it’s only one extra body in the pool. And given the unpredictability of NCAT decisions, is it worth risking having the whole by-law, which is otherwise effective as a deterrent if nothing else, blown out of the water to put one owner back in his box?
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Whether its the lot owner, the owners corporation or the builder, doing nothing is not an option. Non action just causes more damage.
I’m glad someone has made this point. I’m trying to find the line in the Act or Regs that says fixing a problem while you are waiting for a resolution of who is at fault is okay.
But as Kaindub says, make sure you have established from the beginning where the fault or defect lies so that the builder can’t turn round and say the common property was damaged during the repairs.
All that aside, get it fixed as soon as possible.
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