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If the $180 is tax at 30%, that suggests your gross income should be something like $850 – $250 (Tax agent fee) = Net income $600 – Tax $180, for a net benefit to the scheme of $420.
At the risk of being pedantic, the net benefit is to the owners, distributed for tax declaration purposes according to unit entiutlements. That’s why many schemes, for so many years, have put their money in non-interest bearing accounts.
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The Victoria owners corporation Act allows the OC to repair lot property then charge the lot owners who benefit most from the repairs proportionately (Sections 48 and 49 – below).
For instance, for reasons related to the outward appearance of the scheme as well as savings accrued from combining several jobs, the OC might decide to undertake several roof repairs as one project, then charge the repairs back to the owners.
In fact you could argue that not to do so when that mechanism exists is fraudulent on the owners whose roofs don’t need repairs.
To be clear, the OC can repair lot property even when the lot owners are dragging their feet (Section 48), and then charge the costs back to the benefitting lot owners (section 49).
Obviously there is an element of compulsion in Section 48 which may not be required, but section 49 clearly allows the OC to charge the costs back to the lot owners.
The one difference may be if the roofs have been treated as lot property in the past in error, in which case there is no harm in correcting that mistake going forward.
48 Lots not properly maintained
(1) If a lot owner has refused or failed to carry out repairs, maintenance or other works to the lot owner’s lot that are required because—
(a) the outward appearance or outward state of repair of the lot is adversely affected; or
(b) the use and enjoyment of the lots or common property by other lot owners is adversely affected—
the owners corporation may serve a notice on the lot owner requiring the lot owner to carry out the necessary repairs, maintenance or other works.
(2) If a lot owner has been served with a notice under subsection (1), the lot owner must carry out the repairs, maintenance or other works required by the notice within 28 days of the service of the notice.
(3) If a lot owner has been served with a notice under subsection (1) and has not complied with the notice within the required time, the owners corporation may carry out the necessary repairs, maintenance or other works to the lot.
(4) An owners corporation may recover as a debt from a lot owner the cost of repairs, maintenance or other works carried out under subsection (3).
49 Cost of repairs, maintenance or other works
(1) An owners corporation may recover as a debt the cost of repairs, maintenance or other works undertaken wholly or substantially for the benefit of one or some, but not all, of the lots affected by the owners corporation from the lot owners.
(2) The amount payable by the lot owners is to be calculated on the basis that the lot owner of the lot that benefits more pays more.
(3) The works referred to in this section may be to the common property or a lot.
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Have you read this? You are not alone.
I have heard mutterings about people removing the main electrical fuse for the offending flat and snipping the wires so it can’t be easily repaired but I could never recommend such drastic action.
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You could make a bylaw requiring wearing masks on common property, but every person in the block would need to comply( bylaws can’t be discriminatory).
FYI: Masks are mandatory on common property in Greater Sydney. This from the NSW Health website
Requirements around face masks
Face masks must now be worn by persons over 12 years in all indoor and outdoor areas of non-residential premises across all of NSW, except when engaging in physical exercise. A person must carry a mask, even when they are exercising.
There are certain exemptions to this requirement.
In areas subject to stay at home rules, masks must be worn in additional locations including:
- indoor common property areas of residential premises (e.g. lifts and lobbies of apartment blocks)
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I’m sorry, I’m a bit dim – what is DP v SP?
And a word to the wise, initials and acronyms that may seem obvious to you, may not be so clear to others, especially people who are new to strata
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You have my sympathy but someone knows how to do this – renovations are going on all over the place. Maybe you need a project manager.
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It would be very much up to the chair to decide whther or not the votes were valid. Section 16 (2) of The NSW Act says: “The declaration of the chairperson of the result of the voting on any motion at a meeting, otherwise than on a poll, is conclusive without proof of the votes recorded for and against the motion.”
So if you wanted to challenge proxies, you’d have to call for a poll vote at which time they would require closer scrutiny.
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Are you in WA or are those your initials?
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Can you give us an idea of which local government or council area you are in?
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I’m not sure exactly what has gone on here – your explanations could do with a bit more detail of how exactly the non-original owners have been impacted – but it does look like a deliberate attempt to circumvent strata laws.
My understanding of what you have written is that the original owner has sold apartments to companies in which they are the major shareholders, to try to dilute their direct ownership of properties in the block so as to avoid their vote being reduced by two-thirds.
With that in mind, you and as many other owners as you can muster should get together and approach an experienced strata lawyer (like our sponsors Sachs Gerace) as soon as possible.
If your fellow owners are worried about the cost, I’d draw your attention to Section 26 (3) of the Act (below): “An owner may recover, as damages for breach of statutory duty, any loss that has been suffered by the owner as a result of a contravention of this section.”
But there’s a bigger issue here. It seems clear to me that the original owners have set out to circumvent the law to their own advantage. What does that tell you about the future of your building?
In your shoes, I would do everything in my power not only to undo the decisions made by this cabal, but to make sure neither they not their representatives can have anything further to do with the running of the building.
Interestingly, I would say that their only defence – that they didn’t know they were breaking the law – is blown away by the lengths they have gone to to circumvent it.
Act now – call a lawyer – don’t wait!
26 Restrictions on powers of owners corporation during initial period(1) An owners corporation for a strata scheme must not, during the initial period, do any of the following things unless the owners corporation is authorised to do so by an order of the Tribunal under this Division—
(a) alter any common property or erect any structure on the common property otherwise than in accordance with a strata development contract,
(b) incur a debt for an amount that exceeds the amount then available for repayment of the debt from its administrative fund or its capital works fund,
(c) appoint a strata managing agent or a building manager or other person to assist it in the management or control of use of the common property, or the maintenance or repair of the common property, for a period extending beyond the holding of the first annual general meeting of the owners corporation,
(d) borrow money or give securities.
(2) An owners corporation may recover from the original owner—
(a) as a debt, any amount for which the owners corporation is liable because of a contravention of subsection (1) (b), together with the expenses of the owners corporation incurred in recovering that amount, and
(b) as damages for breach of statutory duty, any loss suffered by the owners corporation as a result of any other contravention of this section.
(3) An owner may recover, as damages for breach of statutory duty, any loss that has been suffered by the owner as a result of a contravention of this section (other than subsection (1) (b)).
(4) It is a defence to an action under this section in debt or for damages if it is proved that the original owner—
(a) did not know of the contravention on which the action is based, or
(b) was not in a position to influence the conduct of the owners corporation in relation to the contravention, or
(c) used due diligence to prevent the contravention.
(5) A remedy available under this section does not affect any other remedy.
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Environmental Protection (via local councils) has limits on noisy work or use of power tools, but they are basically not too early in the morning at weekends and not too late at night on weekdays, although each council may have its own rules.
Most strata schemes have their own by-laws on this. For many it restricts work to during the day on weekdays (8am to 5pm), not after midday on Saturdays and not at all on Sundays.
But this differs from strata scheme to strata scheme.
It may well be that your neighbour has heard about a by-law in another scheme and assumed it was a universal rule.
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There are a lot of moving parts in this question, including how justified the complaint may be, whether or not the flooring installers actually put in the best sound insulation, how tolerant or otherwise the downstairs neighbours are being, and how bad the noise really is.
Complicating the issue is the fact that you don’t want to lose this tenant (which would be the simplest solution).
There are three major elements in the transmission of noise through apartment floors: The density of the concrete slab, the insulation on the upper floor, and the behaviour of the residents.
There’s nothing you can do about the concrete slab, there’s not a lot you can do about the insulation on the floor without considerable expense, but there may be something you can do about the resident’s behaviour.
The apartment above ours had timber flooring installed ages ago. It was never a problem but, it turned out, that was because the residents were not noisy. A new owner bought in and that changed a little. When the owner’s kid comes to visit at weekends, we get a lot of thumping as he runs from one end of the apartment to the other. We also hear, very occasionally, someone walking around wearing hard shoes.
Clearly, the original owner (not the current one) installed cheap flooring. If this was a constant problem, we’d go to the trouble of having acoustic tests done with a view to requiring the upstairs owner to install a properly insulated floor or carpets. But it’s not and the occasional noise doesn’t outweigh the hassle and stress of making an issue of this.
Back to your dilemma, my first thought is to wonder how good the insulation on the flooring is and if the flooring installers did a good enough job with the right materials. If they only promised the flooring would meet Australian Building Standards, then that’s your problem right there as they are woefully inadequate for apartments. But if they promised proper insulation and didn’t deliver on that, you could have a case against them to fix the problem.
The other issue is how bad and what form the noise disruption downstairs is. If it’s a serious problem you have to deal with it, regardless of what the tenant wants. And, given the fact the the tenant doesn’t want carpet (which is fair enough), that means terminating the current lease.
However, you could offer the tenant another lease, with conditions, including that they and their guests don’t wear shoes on the hard floors and that they try to avoid excessive noise from walking or running around, moving furniture etc.
If they refuse, then let them go. If they move out, then you might well have an acoustic test done to see if your flooring installers have cheated you and if the downstairs neighbours’ complaints are reasonable.
Recarpeting is a solution if you want to avoid conflict in the block, but it’s another expense – not to mention the wasted money on the timber flooring – and I wouldn’t be giving in quite so easily.
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The Fair Trading Common Property Memorandum says, common property includes “the slab dividing two storeys of the same lot … eg. a townhouse or villa (unless the plan was registered before 1 July 1974 – refer to the registered
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Hello Kaindub
Frankly the comments to date in the shower leak thread , do not answer my question.
That’s because your question is over here in this thread that you started: https://www.flatchat.com.au/topic/leaking-shower-recess-in-a-townhouse/#post-57953
You have responded to an old thread (from March) about leaks in apartment blocks. Stick to the thread you started and you won’t get confused. If you’re not getting any responses, give us a “nudge” by replying to the last post in the thread.
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There are special arrangements for two-lot schemes but I think not for three or more.
There’s an interesting Q&A about that here on our friends’ LookUpStrata website.
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