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How about exercising your rights and arrange to inspect the records of the OC.
Isn’t that what’s already been attempted?
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Apply for mediation at Fair Trading with a view to seeking orders under section 232 (2) of the Act (failure to fulfil responsibilities). Also raise a complaint with Fair Trading about the strata manager.
The mediation may not achieve anything except to let the strata manager and committee members know that they have duties under the law and ignoring them has consequences.
However, it is an essential first step before you take action at NCAT. Mediation is a free service in NSW.
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The change is the votes required to increase the numbers to 12
It’s a strange way to go about it but they are probably concerned about the hoo-haa that would result in some existing committees of 12 having to reduce their numbers.
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I would think that if you approach the chairperson before the meeting starts and tell them you wish to withdraw the absentee vote before any business is done, that would be fine. Absentee votes don’t count towards the quorum (proxy votes do) so the chair may be glad to have a real person in the room if the quorum numbers are tight.
Withdrawing the vote might be tricky later in the proceedings, once matters have been discussed and voted on, so get in early.
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Therefore any remedy is not a maintenance or a nuisance issue, as the situation existed from the beginning.
Global warming? I think you could reasonably argue that circumstances have changed since the building was approved and the building as built and designed is no longer fit for purpose in this regard.
Your tactic may well be the best response but if the majority of owners aren’t affected, it could be a long battle to get 75 per cent approval.
My probably overly simplistic view is that it’s a problem and there are potential low-cost remedies – no need to dress it up as anything other than that.
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I would think it’s up to individual owners to:
- Ask the owners corp to upgrade the balustrades and
- If they either refuse or don’t respond within two months, seek mediation at Fair Trading, followed by action at NCAT seeking orders under section 232 (2) of the Act.
I haven’t heard of any cases being pursued, won or lost based on the ruling quoted in your initial email. There are no Stratakops roaming around checking balustrades. And owners may be reluctant to do the heavy lifting because they will have to contribute to the costs (and suffer the slings and arrows of outraged neighbours).
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Strata owners (or their agents) are entitled by law to see and copy any strata records.
Prospective purchasers and real estate agents are only entitled to see what the strata owner wants them to see (although the convention is that vendors give permission to strata search companies and lawyers to see their strata records).
Some companies will perform a strata search for one prospective buyer and then it sell to or share the costs with other buyers, which is good for the buyers and sellers alike as only one entity is doing the search.
Some real estate agents will supply strata searches but these tend to be very short on the kind of detail you really want – such as ongoing disputes, the emotional health of the community and plans to change by-laws in ways that might disadvantage you
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I would think the delay in reporting this has undoubtedly contributed to the extent of the damage and, as such, the resident below should share some of the cost.
But by how much and how you determine this is a whole other question. In an ideal world, you might say to your neighbours that you split the bill 50-50, and they can claim their half from their home and contents insurers.
And maybe you can claim against the plumber or builder who did the shoddy work. Whatever, the outcome, try to keep the communications amicable and productive. Sitting down over a coffee might be a first step.
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No, you don’t have to wait for an AGM. You make a submission to the strata committee to do something about the heat, including the suggestions you have listed here and maybe even some idea of costs.
You could also include the fact that you have been contacted by several residents who agree (no need to say there were only four).
And you could politely ask if the owners corp doesn’t have a duty to arrange for someone to clean these windows (it does.
If the committee refuses to do either thing, or just doesn’t respond, your next step would be to call for mediation at Fair Trading and take it further at NCAT if that didn’t work.
But at some point, someone will tell the committee it’s easier and cheaper just to fix the problem than fight the issue then have to fix it anyway.
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Your by-law demands that the lot owner doesn’t lay flooring that interferes with the peaceful enjoyment of the neighbouring lots. That is the only criterion you need and you can’t expect anyone to guarantee that whetever flooring they put down is likely to comply.
Your real problem is sections iii and iv of your by-law that specify compliance with Australian Building Standards. As you will see from this article, ABS are woefully inadequate when it comes to apartment floors and your current by-law could be permitting the installation of noisy flooring that otherwise complies with building standards.
I would re-write the by-laws to remove the reference to building standards and replace them with noise transmission figures as outlined by the Assciation of Australian Acoustic Consultants.
And I would add a clause that said that flooring that failed to meet those standards would be subject to potential action at NCAT for its replacement or covering with carpet and underlay.
Then it’s up to the floor-installing owner to ensure their floor more than meets those two criteria – the AAAC standards and the “peaceful enjoyment” limits.
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Our sponsors Bannermans do off-the-peg by-laws (see ad at top of page) or you could join OCN and see if they have anything you might need.
As for the other apartment, by not having a by-law in place, your neighbour has cleverly (or perhaps naively) made the owners corp – that’s you and all the other owners – liable for any consequences of their wall removal should the unit ever be sold.
Your strata manager should quietly offer to allow them to have a by-law transferring resonsibility passed retrospectively. And maybe you and the neighbour could split the cost on what would be a virtually identical by-law.
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If NCAT took a more proactive approach to invalidating those by-laws (a task which it is best placed to do), then there would be no ambiguity about whether or not they are enforceable and valid, as opposed to simply being ‘on the books’ despite an incompatibility with the relevant legislation.
You’re right, except that there are 80,000 strata schemes in NSW alone, each potentially with its own by-laws. So being “pro-active” would demand a lot of sifting, sorting and assessing.
Perhaps a system whereby every new by-law had to be approved by Fair Trading before it was registered could work, provided they were still subject to a test at the Tribunal if it was challenged.
But let’s not forget that in the famous Jo Cooper “no pets” by-law case, the original tribunal overturned the pet by-law, the Appeals Board overturned the tribunal finding and the Court of Appeal reinstated the original verdict.
And let’s not fall into the trap of assuming that by-laws written by lawyers and strata managers are going to be correct every time.
I also think it would help if every new by-law had a summary of intent attached to it. E.g, “the intention of this by-law is to prevent owners from using visitor parking for their own purposes”. Then we could by-pass the weasel words and bush-lawyering and ask pertinent questions about whether the by-law was permitted in the first place and whether it achieved its purpose at all.
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I believe you can just show up with your POA and act on her behalf. It may be better to be registered on the strata roll as her agent but I’m not entirely sure what that process might involve, apart from notifying the secretary or strata manager.
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I have just been ordered to stop feeding honey to my visiting lorikeets.
Maybe you should say they are hypothetical lorikeets, then you’ll be OK.
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Actually, I think the best thing you can do right now is avail yourself of the free strata legal advice provided by Marrickville Legal Centre for the elderly, disabled and financially less well-off in the whole of NSW. Just click on that link, explain your issues to them and then please let us know how you get on.
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