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Could it be the case that their behaviour is a result of feeling ignored by the players (strata committee and strata manager) who are supposed to also protect his interests (if legitimate) as an owner, but who sound like they are investing time and energy in working out how to shut them up?
You could be right but there is no easy answer to this. One person’s grim determination is another’s illogical obsession.
Surely it would be prudent to understand their position properly before resorting to… [a] conduct by-law, which would presumably apply to everyone equally.
The fact that it applies to everyone is kind of the point. That way you aren’t curbing the individual, just the unacceptable behaviour.
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If a strata is yet to decide on how to replace the no pets by-law and someone broadcasts that in 4 weeks they will house a dog on the premises, can the OC act as though the Model by-law has been adopted by the strata and behave “reasonably” with the proposed pet owner?
In a word, no. My understanding is that the by-laws have not been altered by the Court of Appeal decision, just that they will be harder if not impossible to enforce if someone breaches them.
That is waive the (apparently straight forward) application through? Or must the old by-law be formally amended by adopting the Model or some other text in its place before the dog moves in?
Yes, you need to formally adopt the new by-law, even if it’s the Model one. The only circumstances that I can see where the Model by-law was automatically in force, would be if the old by-law had been officially rescinded with nothing put in its place. Even then, you’d have to agree on which of the model by-laws the scheme preferred.
The only obligation on the Owners Corporation is to act reasonably. A reasonable OC that had a blanket “no-pets” by-law, which we know is unsustainable, would sensibly move to create a new one that was both legally sound and reflected the wishes of the majority of owners. But, to reiterate, the by-law has not been revoked – it has just been made harder to defend if someone challenges it.
I am not a lawyer but some might argue that the owner who brought the pet into the building did so under the old by-law which still exists. Thus they have brought the pet into the building knowing that it wasn’t welcome. You might also argue that the Owners Corp’s delay in creating a new by-law did not mean that there was no by-law or that the Model by-laws had been adopted.
The prospective dog owner should be made aware that they could still be issued a Notice To Comply and they may have to go to NCAT to plead their case (albeit, with the very high likelihood that they will win). However, if one of the model by-laws had been adopted, then that is what the dog owner has to go by.
What is the procedure to amend the Model (which was itself an amendment to the no pets by-law”) and how expensive would it be?
An amended by-law is basically a new by-law. You need a general meeting and a vote of more than 75 per cent of those attending in person or by proxy. It costs whatever it takes to draft a new by-law (or amendment) issue the agenda, stage the meeting and register the by-law, and the cost partly depends on whether you get a lawyer to draft the by-law, take one off the peg or try the DIY approach.
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Is there a binding explanation as to when a visitor is no longer a visitor but now a resident.
It’s not so much about defining who is a resident and who isn’t, it’s about the owners corporation setting its own rules and regulations to cover the use of common property.
If I was moving into a block with visitor parking, which didn’t have a by-law defining what the owners felt was reasonable when it came to visitor parking, I would push very hard to have one created.
My bylaw would says something like:
Definition of “visitor” with regards to visitor parking:
This strata scheme defines bona fide visitor use of visitor parking to be
- No more than two hours during the day and evening (9am to 9pm)
- No more than 12 hours overnight, from 9pm to 9am.
- Individual visitors who park their cars taking advantage of any period of overnight parking must not be parked in a visitor space before 9pm or after 9am on the same day.
- Residents (including owners and tenants) may not use visitor parking at any time without written permission of the strata committee.
- Residents may apply to the committee to temporarily alter these restrictions but may only alter them with written permission.
- Residents are responsible for explaining these restrictions to visitors and are liable for any fines imposed due by-law breaches.
Now, obviously you could adjust those times to suit the views of the majority of your owners, but at least it gives you a framework to curb any current or future land grabs (because that’s what this is – taking common property for personal use).
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Is there a binding explanation as to when a visitor is no longer a visitor but now a resident.
It’s not so much about defining who is a resident and who isn’t, it’s about the owners corporation setting its own rules and regulations to cover the use of common property.
If I was moving into a block with visitor parking, which didn’t have a by-law defining what the owners felt was reasonable when it came to visitor parking, I would push very hard to have one created.
My bylaw would says something like:
Definition of “visitor” with regards to visitor parking:
This strata scheme defines bona fide visitor use of visitor parking to be
a) No more than two hours during the day and evening (9am to 9pm)
b) No more than 12 hours overnight, from 9pm to 9am.
c) Individuals who park their cars taking advantage of any period of overnight parking must not be parked in a visitor space before 9pm or after 9am.
d) Residents (including owners and tenants) may not use visitor parking at any time without written permission of the strata committee.
e) Residents may apply to the committee to temporaily alter theses restrictions but may only alter them with written permission.
f) Residents will be responsible for explaining these restrictions and are liable for any fines imposed due by-law breaches.
Now, obviously you could adjust those times to suit the views of the majority of your owners, but at least it gives you a framework to curb any current or future land grabs (becasue that’s what this is – taking common property for personal use).
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If the chair is blocking both moves to fulfill the OC’s duty to maintain and repair common property, and is ignoring NCAT orders to do so, I would think there would be very solid grounds for having them removed from the committee under Section 238.
238 Orders relating to strata committee and officers(1) The Tribunal may, on its own motion or on application by an interested person, make any of the following orders—
(a) an order removing a person from a strata committee,
(b) an order prohibiting a strata committee from determining a specified matter and requiring the matter to be determined by resolution of the owners corporation,
(c) an order removing one or more of the officers of an owners corporation from office and from the strata committee.
(2) Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has—
(a) failed to comply with this Act or the regulations or the by-laws of the strata scheme, or
(b) failed to exercise due care and diligence, or engaged in serious misconduct, while holding the office.
If not, you’d have to wonder why Section 238 exists.I would file for mediation on those grounds (it’s free). Just doing that might scare them into action.If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
It seems to me that the Owners Corporation is bound by section 73 (2) of the Act which says:
(4) Amounts payable from fund
An owners corporation may pay money from its capital works fund only for the following purposes–
(a) payments of the kind for which estimates have been made under section 79 (2) …
(There are other conditions which are not relevant to this question).
Section 79 (2) says:
79 Estimates to be prepared of contributions to administrative and capital works funds
(2) An owners corporation must, at each annual general meeting, estimate how much money it will need to credit to its capital works fund for actual and expected expenditure …
(f) to meet other expenses of a capital nature.
Note : Expenses of a capital nature would include expenses in relation to major repairs or improvements to the common property …
It’s pretty clear that a plan to build something comes under “expected expenditure” and the committee should at least present an estimate of what that cost would be at the AGM and that should be on the AGM agenda for it to be considered at the meeting.
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Good morning y’all,
At an upcoming General Meeting a motion will be put to a vote giving the SC a blank chq to spend on a dubious building project on common property. Question: Are such “blank chq” motions legal?
What exactly do you mean by “blank cheque”? Is this a major project? It this a block of more or less than 100 lots (different rules apply). If the block is larger than 100 lots, at least two estimates must be prepared for spending over $30,000.
Question: Assuming the “blank chq” motion is legal and passes, can it be challenged at NCAT?
Any committee decision can be challenged at NCAT, it all depends on the grounds and the likelihood of success. However, if it’s “legal” I can’t see what the grounds would be. If you challenge a decision at NCAT and it has no chance of success, you leave yourself open to a claim for legal costs.
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A question I hope to get help with- Is somewhere I can find the relevant legislation or guideline on whether an owner can attend a general meeting if she/he is not a committee member, in Melbourne Victoria?
I can’t find anything in the legislation. Can one of our Vic readers help?
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There are three basic elements in the transmission of noise from floor to ceiling. One is the construction of the floor – the thickness and density of the slab – then there’s the insulation above the floor and above the ceiling, then there’s the behaviour of the people in the upper apartment.
The density and construction of the slab is often overlooked but it can explain why apartments within the same blocks – let alone different buildings – can differ wildly.
Your strongest case in this is probably that the builder has sold apartments on one basis than decided not to provide the build to the specifications promised.
You best tactic, if you get nowhere with Fair Trading or the Building Commissioner, may be to expose them in the media (who right now love stories about dodgy developers and apartment owners who have been ripped off).
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Section 87 of the Act deals with variations of levies payments. Section 88 requires the Owners Corporation to refund the money paid in levies where they have been found to have been unjustified under Section 87.
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There must be some way of dealing with a ratbag resident who enjoys dragging his or her neighbours to NCAT, even when they know they are going to lose.
The by-law could be a way forward, especially if the strata committee seeks costs if it goes to NCAT. 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.
If anyone’s interested this document outlines the “special circumstances” under which NCAT can order costs
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The other tactic that one strata manager uses is to hold committee and general meetings off site ie in his office. When the troublemaker starts trouble, the strata manager gives a warning and the next outburst uninvites the troublemaker from the premises.
It sounds like a good idea, but I can imagine a serial pest (rather than Shouty Angryman at a meeting) might then launch an action at NCAT that they had been deprived of their right to attend a meeting.
I’m not saying they’re right, just that if people are determined to make nuisance of themselves using spurious complaints then this would be grist to their mill.
Interested in the behaviour by-law. What’s the actual wording?
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