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Yes, but the committee could waive the interest charge subject to approval at the next general meeting. And, yes, the agent has to take some responsibility for not paying the levies on time.
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The 10 per cent penalty notice is a statutory amount but the owners corp can decide to waive it if you ask them to.
And even if they don’t you can apply to the Tribunal if you think they should have waived it because it was a genuine error.
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I can think of one person who’ll be glad that construction has been stopped during the lockdown.
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Yes, according to this Tenants Union Fact Sheet, you can pay four weeks rent for breaking a lease after less than 25% of its term has expired.
The detail on the 25% rule is at the bottom but read the fact sheet thoroughly as it may offer other options or flag other conditions that may be relevant, and it explains the procedures that you must follow to activate this clause.
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Here are the relevant sections of the by-laws of this particular scheme:
Maintenance and Repair of Buildings or other Improvements on Community Lots
30. The owner of a community lot must:
30.1. maintain the community lot and all buildings and improvements on it in good repair;
30.2. carry out any work ordered by any statutory authority in respect of the community lot or the
buildings or improvements on it.
31. The owner and the occupier of a community lot must keep the community lot and any buildings
and improvements on it in a clean and tidy condition.
32. The owner and the occupier of a community lot must properly maintain the landscaping on a
community lot.Offence
40. A person who contravenes or fails to comply with a provision of these by-laws is guilty of an
offence. Maximum penalty: $500.00.It’s absolutely clear that there are obligations on all owners and penalties for not fulfilling them. Your problems will arise if owners decide they’d rather pay the fine that pay for repairs. And that leads to the question of how often you can issue breach notices and fines and on how many different aspects of the by-laws you can allege breaches by the one lot.
Of course, in the event of outright refusal or failure to undertake the work, you could then go to the Magistrates Court to seek orders.
But that’s way down the track. I would start with a motion at a management committee meeting committing the scheme to requiring owners to maintain and repair all lots, inviting owners to participate in work that can be done collectively (to save money) and a low-key warning that there are steps that the scheme can take to compel owners to do the work.
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However I think you need to look at the wording of the bylaw.
Well, that sent me off looking for standard Comuunity Title by-laws for SA and according to this page in the Law Services Commission (SA) Handbook, there are none”
“Unlike the Strata Titles Act 1988 (SA), the Community Titles Act 1996 (SA) does not include a standard set of by-laws. The Community Titles Act 1996 (SA) requires developers of community schemes to draft individual by-laws (Community Titles Act 1996 (SA) ss 12, 34) which reflect the nature of the particular scheme . The by-laws must cover the administration, management and control of the common property; must regulate the use and enjoyment of common property; and must regulate the use and enjoyment of community lots to give effect to the scheme description .”
Maybe BobT77 could send us a copy of his scheme’s.
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The SA community titles by-law breaches process can lead to action at the magistrates court so it would be good to establish an agreed process. Also, unusually in Australian strata, the body corproate or management committee can issue fines for alleged offences.
So this is how I would handle it.
Hold a general meeting at which you firstly (if you haven’t already done so), establish a sliding scale for by-law breach penalties. This could be,say, $200 for the first offence, $350 for repeat offences and the maximum $500 for three-peats.
Then hold a management committee meeting to issue notices of “alleged” breaches of by-laws, detailing what the breach is and what the expected remedy is. I think you might need to be very precise here as this could end up in court.
The owner has 60 days to mend their ways or pay the fine. See this Legal Services Commission of SA fact sheet for more information.
At this point, if they haven’t fixed the problem, you could either hit them with another fine or escalate this to your local magistrates court. See this fact sheet where there is pro forma wording of the breach notice you would need to use, plus a link to the official notice.
At court you can ask for orders compelling the owners to do the work (which is why you need to be specific in the breach notice.) FYI: The owners can also take the scheme to court to have the breach notices overturned.
But before you did any of that, I would issue a notice to all owners that the management committee is about to get serious about maintenance of lots.
Something like:
We are becoming increasingly concerned by the deterioration of the physical condition and appearance of some lots in this scheme which we feel not only undermines the amenity and value of all our properties but is also in breach of our by-laws, namely (XXX).
We want to allow all owners the opportunity to bring their lots up to an acceptable level and will be issuing notices of work that we feel needs to be done to individual lots.
With that in mind, we will ask affected owners to present a plan of necessary works to the committee for approval withing 30 days.
Where appropriate, we will endeavour to coordinate tradespeople to undertake the work on different lots at the same time with a view to reducing costs to individual owners.
However, if owners don’t present an acceptable work plan, with quotes from professional trades attached, within the designated period, we will issue an an “alleged breach” notice and and a $200 fine for breaches of by-law (XXX).
This will be done under the terms of Section 101 of the Community Titles Act which says (in part):
101—Power to enforce duties of maintenance and repair etc
(1) A community corporation may, by notice in writing to the owner of a lot, require the owner—
(a) to carry out specified work in pursuance of a duty of maintenance or repair imposed on the owner by this Act or the by-laws;
(b) to carry out specified work to remedy—
(i) a breach of this Act or the by-laws by the owner or a former owner or an occupier or former occupier of the lot; or
(ii) a situation that is likely to result in a breach of this Act or the by-laws;If the lot owner fails to remedy the breach, we will escalate the case to the Magistrates Court seeking orders compelling the owner to undertake the work. If need be, we will also seek legal cost in any cases we pursue in this way.
We apologise if this seems heavy-handed, but the deterioration is significant and serious in some cases and you are entitled to know that there may be consequences for failure to abide by your by-laws.
And it’s at this point, especially if there are a large number of lots needing repair, that I feel your committee should first speak to a strata lawyer experienced in the vagaries of SA community title laws.
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As Jimmy notes, ask the committee to install or replace any door closing mechanism on your neighbour’s door.
I actually said that the door closure should be adjusted not replaced. And I wouldn’t get too bush-lawyery too early in the piece.
Show the committee (or building manager) the damage, suggest a solution and only if nothing gets done start making noises about by-laws and the strata Act.
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Most if not all modern door closing mechanisms are two stage and adjustable, intended to be rapid closure most of the way, followed by a slower clunk of completion.
Our building’s fire inspectors used to adjust them to one maximum slam, citing “fire safety”. That was until I stood there with my own Allen key (the kind of hex key you get free with furniture from Ikea) and told them, as soon as you’re gone, I’m putting it back how it was.
In the case of your neighbours, probably the easiest thing is to first tell the strata committee about the crack in the wall, and then explain that there’s no point in fixing it until they adjust the neighbour’s door closure (which is also common property).
Two birds with one stone.
You will not be able to persuade people (especially youngsters) to close a door manually when they can just walk through and leave it. But you can have the door adjusted so that it’s no longer a problem.
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NCAT agreed with them citing “loss of peaceful enjoyment” as the main complaint and it is – who’d have thought – the landlord’s duty to ensure his tenants have undisturbed peaceful enjoyment regardless of whether he is disturbing them or someone else is. At least that’s what NCAT determined.
Yep, it’s a duty of care and it’s based on the idea that the landlord can (theoretically) influence the decisions and actions of the owners corporation in ways that tenants can’t.
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the rental agency replied to my email saying it’s out of the landlords hands.
Have a look at TruleConcerned’s post. That’s not how NCAT sees it. The landlord can ask the strata committee to act and could even ask for compensation if they lose rent becasue fo a failure to do so.
I would lay odds of 10 to 1 that the rental agent hasn’t even told the landlord that there’s a problem.
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In Victoria: While floor structures can be common property, floor surfaces are usually lot property. That’s tiles, floating floors, carpets etc. It can depend on the Plan of Subdivision but that’s the usual.
I stand corrected. Oh, for some consistent consolidated strata laws across Australia.
So the answer is, you have grounds for demanding the upstairs owner fixes the noise issue but you may have to run the case yourself.
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This is a tricky one as it’s hard to argue against work that’s being done to improve the safety of the entire building.
I would go back to your rental agent and tell them that unless they make a genuine effort (probably via the landlords) to get the owners corp to limit the duration and frequency of noisy work during the lockdown, you are going to take them to NCAT to force them to reduce your rent or allow an early termination of your tenancy with no penalties attached.
Also, you are going to contact every other tenant in the building and suggest they do the same.
This means, of course, that you won’t get your tenancy renewed when it comes up next but you don’t want to live there anyway. If you’re planning to move, now would be the time to do so when rental market availability is up and rents are low.
By the way, your landlords probably don’t even know you have complained – rental agents are very good at doing nothing, especially when it means they can keep telling their clients that everything is hunkydory.
The sad fact of issues like this is that if you were an owner, you could get building management to tell the contractors to limit all their noisy work to certain concentrated periods. But because you are a tenant and the rental agent doesn’t care and the landlord probably doesn’t know, simple solutions aren’t even considered.
Contact the Tenants Union for advice on how to get the landlord to make the calls that could fix this or at least limit it.
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I will always ensure the funds are there in the capital works fund for the job but i don’t feel any urge to give them a call. Legally, I don’t know whether there is any limit on their side to provide billing.
I reckon you are doing the right thing. Quarantine the funds but don’t be rushing to reward someone’s incompetence.
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