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I’m sure some of our Victoria readers will be all over this (hello, Austman!).
In the meantime, you have posted the same question twice in different posts (one now deleted) and named your insurer (now edited out). Either of these breaches of of rules would be a very efficent way of getting your question bumped off the site completely.
I really wish newcomers to the site would just read the rules before they start posting. It’s a small ask for providing free advice.
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Can you advise if a motion to transfer funds from Capital Works to Admin passed by the SC is invalid?
Strict reading of the Act would suggest that it’s only if the strata committee has delegated powers to Act on behalf of the Owners Corporation (a fairly standard set-up) that they can do this. In the absence of any such approval, the SM may be right. This is what the Act says (my emphasis):
(4) Amounts payable from fund
An owners corporation may pay money from its capital works fund only for the following purposes:
(d) the transfer of money to the administrative fund or to pay expenditure that should have been paid from the administrative fund.
Even so, the strata committee is taken to be acting as the OC in all matters except those specifically requiring approval at a General Meeting, so I think your strata manager may be being a tad pedantic.
Of course, you might have passed the standard motion at your last AGM limiting the SC’s spending powers. I would check it out.
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No, they’re not usually common property. The floor slab is common but from there up to the next floor slab (or up to a certain height such as 2 metres above the floor) they’re part of the unit.
Citation required for this (if you can find one). Unless you have a barbecue that floats above the tiles without touching them, then they are very much on common property … and even then …
But if the smoke is stinking-out other units, surely that would come under a peaceful enjoyment by-law.
You would think, but despite all the nonsense put out by Fair Trading and dutilfully published by the Daily Terror, the “nuisance” clause in the Strata Act specifically only applies to “smoke from smoking”.
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You should come up with something visible to them, something to get in their way, so that they realise their mistake, a kind of revenge plan.
OK … interesting … more please!
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I suspect that the agents or landlords just don’t understand their obligations.
And/or that they have a handy pile of standard model by-laws that they just attach to all rental agreements. The difference between what rental agents think the law allows or demands and what the facts are would make for a good episode of “Mr & Mrs” (showing my age here.)
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If your strata scheme was formed before 1996 and no changes were made to by-laws since then, then the Schedule 2 by-laws apply (and they were automatically updated in the 2016 Regulations). If changes were made, they apply along with the unchanged Schedule 2 by-laws.
If rental agents are handing out the newer (Schedule 3) Model by-laws to tenants in a pre-1996 scheme then they should stop as technically they are breaking strata law, not to mention causing confusion by providing the wrong information.
If your scheme was registered after 2016, then the by-laws that were in place remain as they were, including any subsequent changes. The Model by-laws don’t automatically update by-laws in post-1996 schemes unless there are model by-laws covering issues that are not covered in your by-laws.
A lot of older schemes sit down with the current model by-laws and compare with their originals and see if they need to be updated due to significant changes in strata living that have occurred in the past quarter century.
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I have been sent an rude email under the made-up name Simon Boccanegra. Normally I would just flick this to spam, but it’s worth answering because it illustrates how obsessive people who believe they are in the right can get drawn into the quicksand of legal costs.
So here is the email.
The following sounds very hard to believe. $40 thousand costs awarded against someone at NCAT? I sincerely doubt this. I’ll call BS.
“And costs are awarded under certain circumstances, as has happened to a very distressed reader who wrote to me today saying she’s had legal costs of $40k awarded against her.”
Clear this up, sunshine. Was this taken to a higher court or something. As you would know NCAT almost NEVER awards costs. It’s supposed to be a civilised egalitarian way to settle disputes, yes?
As explained in the link I posted earlier, there are certain grounds under which NCAT will award reasonable costs. They are (and this is taken from the NCAT website):
a) A party has conducted their case in a way that unnecessarily disadvantages another party
b) A party has been responsible for unreasonably making the case take longer
c) The relative strength of a party’s case or whether the case was hopeless
d) The nature and complexity of the case
e) A party’s case was frivolous, vexatious or misconceived
f) A party has not cooperated with the Tribunal in providing a just, quick and cheap resolution of the real issues in dispute
g) A party has not followed Tribunal orders or directions
h) Any other matter the Tribunal thinks is relevantNow that covers a lot of options but you can see how a misinformed, obsessive and vexatious litigant could trip themselves up, especially if they suffer from bush-lawyeritis.
Now, to be clear, costs awarded by NCAT are not a penalty, per se, nor are they compensation for travel or time taken off work.
However they do include fees for representation, and costs that unrepresented parties would have to have paid if they had been represented, such as filing fees, expert witnesses and printing costs.
The limitations on those charges are established in the Legal Profession Uniform Law Application Act 2014, but all it takes is a few delayed hearings, misconceived challenges and recesses to address previously withheld evidence and the legal bills could mount up for the other side .
And, of course, delays, misdirections and unsustainable arguments would not only inflate the defence’s legal bills, they would trip over several of the clauses that allow costs to be ordered.
OK, but $40,000? In the case that was brought to my attention, the costs claimed for defending the Tribunal action was six or seven relatively small amounts (at least by legal standards) that added up over the course of a tricky case.
So, yes, you could theoretically end up having costs of $40k awarded by NCAT, because NCAT can either get the parties to agree on the costs, apply the terms of the Uniform Terms Application Act, or set a figure itself.
Simon Boccanegra is an opera by Verdi about a peasant who seeks high office. Spoiler alert: At the end he is betrayed and dies of poisoning. Sad.
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I’m a victim of a Strata Manager – ‘Window Lock Nazi’. My ‘crime’ was to elect to install the locks myself , simply to avoid having the devices painted on during renovations.
I’m not sure what the actual problem is here. Are you supposed to pay the strata manager for a certificate and they are charging the owners corp every time they send you an email demanding that you do so? In which case, I think the OC should be telling the strata manager to stop and repay the funds they have charged them for emails that never needed to be sent.
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Further to this astounding revelation that balconies are probably not common property in Victoria, I found this following passage on an information sheet on the Communique platform:
A common misconception is balconies are the responsibility of the Owners Corporation and the owner is relieved of the obligation to maintain it. Unlike some other states, in Victoria, the structure of a building including balconies is not necessarily common property. It is an issue of survey determined by the plan of subdivision.
In a multilevel building, a plan of subdivision may adopt the interior face as the location boundary. If so, the slab or structural trusses will be common property and the responsibility of the Owners Corporation to repair and maintain. Unless the plan of subdivision indicates otherwise, the boundary of the lot is located at the unfinished surface and any waterproof membrane and tiles are within the owners’ lot.
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For the record, although this discussion was initiated by one person in one scheme, it has wider and more general implications across strata in all jurisdictions. Most of the comments below are very general and not specific to any single community.
Also, my apologies for leading the discussion down a rabbit hole about Apprehended Personal Violence Orders. It turns out they are applicable for individuals but less so (or possibly not) for groups. I have edited out all references accordingly.
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1. Apart from NSW STRATA SCHEMES MANAGEMENT REGULATION 2016 – Reg 14 and Reg 15, are there any other regulations or sections of the NSW SSMA that addresses this matter?
I don’t think so apart from the usual restrictions on people not being able to vote if they haven’t paid their levies before the meeting
2. Are there any matters that cannot be voted on pre-meeting?
Not that I’m aware of but it’s hard to vote for committee members if they haven’t been nominated in the agenda.
3. If an owner asked to have this motion listed on the agenda for say the AGM, is this considered a:
General Resolution, Special Resolution or Unanimous Resolution?It’s a general resolution. See Schedule 3 of the Act for more information.
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Unfortunately the majority of water leaks from balconies, terraces and bathrooms in Victorian stratas is a lot owner responsibility.
I had no idea that was the case. Glad I suggested getting a strata lawyer involved. But, of course, poor workmanship that’s still under warranty should be repaired if it’s not fit for purpose.
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Building managers will generally do as they are instructed by the Owners Corproation and it’s the OC with whom you have the dispute. In a case like this, it’s often a case that the committee members don’t want to have to pay fees that would be increased by getting the work done, however the OC has a legal duty to maintain and repair common property.
It sounds like you are going to have to take the OC to VCAT, seeking orders to force them to fulfill their legal duties. Have a look at this information page then consider getting together with any other owners in your block who are suffering the same problem to hire an experienced strata lawyer to conduct the case for you.
Good luck.
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