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There aren’t many, if any, laws around parking spaces – they tend to be covered by by-laws which vary from building to building – but there are laws about common property.
The simplest solution would be to commence action against the strata committee for failure to enforce its obligations to maintain and protect common property. This would probably be under Section 232 (2) of the Act.
But initially, you and other owners would have to request mediation at Fair Trading and the prospect of having to defend his little land grab might be enough to see the cage removed.
By the way, there’s a reason we have fire regulation in our buildings – it’s to stop people dying in fires or getting hurt while fleeing from them. Concern that they might have to upgrade their fire safety measures should ring alarm bells in itself.
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We would like to get the golden canes cut to 1.5M but our northern neighbour wants to keep them as it stops apartments above us from seeing into one small part of his balcony. At the moment the northern neighbour refuses to allow the Owners Corporation to trim the golden canes.
So, is this guy the king of the building? Launch mediation with the owners corp with a view to getting orders under section 232 (resolving disputes) to compel them to allow you to have the basic amenity of sunlight into your home. They might even appreciate being ordered to do something they know is right but are too timid to do themselves.
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Has any one experienced a similar problem?
I’ve never come across rain water tanks in strata before so I’m guessing the numbers of similar experiences are limited.
However, the general rule is that anything that services only one unit is the responsibility of the owner of that unit. It might come under your landlord insurance, if you have it. It would certainly be worth a call to your insurer.
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My view is that any waterproofing that was on those tiled balconies previously would have been altered or potentially damaged by the tiling, and therefore those owners are responsible for the waterproofing.
Not sure about that – you’d have to prove that the waterproofing was damaged, when (theoretically) it might have been enhanced.
The interesting question (for me) is whether or not the OC is prepared to order the owners to remove the tiles so they can waterproof the balcony, without paying to have them replaced because they shouldn’t be there in the first place.
You could sell tickets for that stoush.
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The committee discussed legal advice after we had left the meeting, agreed that we alone would be responsible for costs and recorded that in their minutes.
All that means is that they can apply for costs should this go to a Tribunal or court. There is definitely no guarantee that they would be successful (far from it). I would put this down to window dressing on their part, to try to scare you off and impress other owners.
You might want to write to the committee and strata manager to point out that they may not incur charges on your behalf, as that would be illegal, and that they are unlikely to win costs at NCAT because the grounds for that happening are extremely limited.
In other words, if they chose to hire lawyers to fight this, that is a cost they are imposing on all owners and definitely not just you. NSW strata law is quite clear on this – all costs have to be borne by all owners based on their unit entitlements, except on the rare occasions where a tribunal or court rules otherwise.
The building plan shows the Lots with car space and storage area – hence creating rules to restrict it would be highly improper.
Is it restricting or controlling? The owners corp is entitled to control what you do on your lot when it affects, for instance, what can be seen from outside or common property or the safety of the building. That’s why you are right to try to get a standardised look and form of storage for everyone and demand more information about the fire safety considerations.
We believe that any restrictions relating to the fire sprinkler system were not sufficiently researched or clarified, especially now that we’ve looked into it ourselves.
These are arguments that you would take to NCAT, if it came to that.
We sure feel extremely unpopular just because we challenged their stance, though it was necessary.
If the committee and strata manager won’t sit down and mediate, then as suggested before, you could commence proceedings under Section 232 (which requires that you, at least, attend a mediation). If the committee refuses, that will go against them at NCAT.
Your strongest grounds would be if you were trying to standardise the storage sytems (Box Things, etc). You are on shakier ground if you want the committee to approve storage that suits you and, at this stage, only you.
Maybe you could send out an email questionnaire to all owners asking if they would like the committee to come up with a standardised storage system and suggesting some alternatives.
Never forget that the owners. as a group, control the committe and the committee controls the strata manager, not the other way round. You need to keep the majority of your neighbours onside and then the committee and its quirks and biases will be a lot less relevant.
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Let’s break this down.The committee … agreed to obtain legal advice at our expense, without our knowledge.
Is that at the collective expense of all owners (which is fine) or billing it back to you without your permission, which they can’t do?
Not being able to store possessions in our storage area reduces our enjoyment of our living space and ultimately reduces the value of our property …
So the by-laws or strata plan say you can use the car spaces for storage but the committee doesn’t allow secure storage? They are going to have trouble making that stick at NCAT.
… similarly for 9 other properties, who may still not have been fully informed, despite our suggestion.
So ask for the other owners’ email addresses and tell them what’s going on. But couch it in terms of there being confusion and inadequate advice from the fire safety people. Don’t get into a postion where you are asking owners to support you against individuals.
The managing agent has forwarded communications but has not provided support, shared an opinion, provided advice or mediation.
Those really aren’t the strata manager’s jobs and they will usually avoid getting in the middle of conflicts where personalities may be part of the issue (as you seem to suggest here). They work for the owners but their first point of contact is the committee, the committee is, in turn, answerable to the owners corp (all owners). If you want mediation, raise an action at Fair Trading under section 232 (resolution of disputes). The compulsory mediation prior to an NCAT action is free.
At this stage, the committee has agreed to approach an A1 accredited certifier to provide certainty for the entire building. Should that really be necessary?
That actually sounds like a reasonable solution, provided the certifier isn’t simply going to jutify their position, rather than give a definitive and independent opinion.
Even if they do the former, you can go back to the committee and tell them that it will be up to them to define what CAN be used as storage (assuming you can get the 25 percent of votes required to block a change to the by-laws).
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I agree with all that Kaindub has said. If all powers have been delegated to the strata manager then you have to take them back if the SM isn’t even doing the basics.
I would compile a document prior to your next AGM that explains to owners how the value of their investments is being eroded by neglect of the building. Compare like-for-like rents with nearby blocks that are well-maintained. The one thing that motivates investor owners above anything else is money.
And then there’s the argument that if the committee isn’t even going to trouble themselves by having a chair, and secretary, then why are they even standing for election?
Get the email addresses of all the owners and start your campaign. The strata manager may refuse to give you the email addresses on the entirely spurious basis of privacy. This is nonsense. You are entitled to see all records of the Owners Corp and that includes email addresses.
And as far as taking back the offices of the committee, all the committee has to do is meet, pass a resolution and inform the strata manager. So, as Kaindub says, take over the committee with at least one committed and organised person by your side, and off you go.
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… given that the valve is located in your lot and services a single lot, it’s the owners responsibility.
True, except if the pipes are inside a common property wall, in which case they are common property and the responsibility of the owners corp (according to the Fair Trading Common Property Memorandum).
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There’s a lot of good advice on the Consumer Affairs Victoria website, so read up on that.
Also, don’t be too timid in doing or saying what you believe to be right and proper. Provided you have acted in good faith, section 118 (below) of the Owners Corporation Act offers wide-ranging protection from liability, even when it comes to questions of defamation.
I mention that because I know of one notorious strata committee here in NSW where the chair deflects all criticism in committee minutes by threatening legal action if they are published, so the owners never know what’s really going on and the chair gets re-elected every year. It wouldn’t happen under my watch: if I was sure of my ground my response would be “bring it on”.
The courts tend to favour lively and open discussion over compensating thin-skinned committee members for perceived hurt feelings. This case is not a legal precedent (certainly not in Victoria) but it shows how the judiciary can think in these cases.
By the way, acting in good faith means that you have good reason to believe something is correct, and that you haven’t gone ahead and done something despite reliable advice or knowledge to the contrary.
Section 118: Immunity of committee members
(1) A member of a committee or a sub-committee is not personally liable for anything done or omitted to be done in good faith—
(a) in the exercise of a power or the carrying out of a function under this Act or the regulations; or
(b) in the reasonable belief that the act or omission was in the exercise of a power or the carrying out of a function under this Act or the regulations.
(2) Any liability resulting from an act or omission that, but for subsection (1), would attach to a person, attaches instead to the owners corporation.
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Jimmy you may be wrong. The penalty interest is 10% per annum, not per quarter and it’s simple interest, not compounded (that makes calculation easier).
I probably am wrong. However the debt is accrued quarterly so it would be reasonable to charge four penalty interest charges which would add up to the same (uncompounded).
And bear in mind this is in Victoria where the OC can decide not to impose penalty rates or chose the penalty interest they want to impose up to a maximum of 10%. Also according to this fact sheet, penalty interest can be charged 28 days after the final demand for levies (which can be issued 28 days after the initial notice).
Unlike in NSW, there is nothing (that I can find) in the OC Act about being able to charge reasonable costs of recovery to the lot owner, but that may exist in other legislation.
In this particular case, the imposition of penalty rates is really only suggested as a tactic to get the executors of the estate moving.
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Hmm. The reference to linen makes me wonder if you are running short-term lets against the wishes of the majority of the committee (if not the owners). Maybe they lack the 75 per cent vote to block Airbnbs, so they are trying to be as obstructive in other ways as they can. Just thinking.
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The standard by-laws (which, admittedly this scheme might not have) say this:
12 Appearance of lot(1) The owner or occupier of a lot must not, without the prior written approval of the owners corporation, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building.
Believe it or not, that has been taken to include clothes drying on a rack INSIDE the apartment but which could be seen from outside. And, please, don’t anyone tell me looking inside someone’s window is an invasion of privacy. It isn’t, unless it’s for salacious or other illegal purposes.
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Two questions:
1) Can interest be charged on the outstanding fees, and if so is there an easy way to calculate said interest?
Unlike in NSW, where penalty interest charges are the default, in Victoria they are an option which must be imposed (or not) by a simple majority decision taken at a general meeting or a strata committee meeting (if the SC has delegated powers). I say “or not” because a decision to waive penalty rates and the reasons for it must be reported to the next AGM.
The maximum penalty interest rate is 10 percent, I may be wrong on this but I believe you could calculate the money currently owed by compounding the interest starting with the first defaulting quarter. Say the lot owed $1000 from the first quarter, by the second quarter it would be $2100 ($1,000, plus 10% plus the next $1000). The following quarter it would be $3210 ($2,100 plus 10% plus another $1000 in new fees). You can see how this would add up very quickly
2) Is there a time limit on just how long until something has to be done by the surviving family? Thanks in advance.
I don’t think there is any set time so it is very important that you establish now how much is owed, with a revised bill going out every quarter. You need to establish your OC as a creditor so that you and your neighbours get what’s owed before the surviving relatives get their shares.
I think the receipt of an accumulating bill might prompt the beneficiaries of the estate to wrap things up. You can also look at establish the debt in a local court so the your OC gets the first payment to come from the sale of the unit.
Have a look at Section 29, Section 30, Section 31 and Section 32 of the Act. If the sums are high, it would be a very good idea to speak to a strata lawyer.
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Who is responsible for repairs to the waterproof membrane, tile bed and tiles?
Here’s my interpretation based on the information provided. You might want to check with a professional surveyor.
Firstly you have to think of your terrace as being contained in an invisible box and everything in that box is your responsibility, because it has been defined as lot property.
In your specific case, if the terrace isn’t sitting on part of the concrete slab (maybe the roof of an underground car park) the box extends 2.5 metres above the floor of the terrace and two metres below it.
If the terrace IS sitting on a concrete slab, your lot “box” only extends downwards to the surface of the concrete.
Anything that extends above the 2.5 metres above the surface of the terrace has strayed into common property air space.
The Strata Plan states: “WHERE NOT COVERED, COURTYARDS ARE LIMITED IN HEIGHT TO 2.5 ABOVE THE UPPER SURFACE OF THE CONCRETE FLOOR OF THE BUILDING OF THE RESPECTIVE LOT ON BASEMENT LEVEL AND, WHERE NOT CONCRETE PAVED ARE LIMITED IN DEPTH TO 2 BELOW THAT SURFACE”
I understand that to mean that the soil is the responsibility of the lot if the surface is less than 2.5 above the concrete level in the basement. Is this correct?
Yes.
If the soil surface is more than 2.5 above the concrete level in the basement, who is responsible?
Do you have a hill in your terrace? If the soil in the terrace floor extends upwards into common property air space, and you haven’t passed a by-law agreeing to the use of that air space, then it is in common property and the strata committee could ask you to remove it. Again, how soil would get so high is beyond me.
To answer your question, if there is a concrete base then everything above the upper surface of the concrete base is your responsibility, that would include waterproofing and tiles.
By the way, the references to the terrace being covered or uncovered probably refer to structures like awnings and overhangs above the terrace, not coverings of the terrace floor.
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The 2 (metres) below and 5 above refer to common property. This is almost definitely an owners corp responsibilty.
I’m going to partially correct myself here – what I said before would only apply if the courtyard was common property. If it were lot property, then the 2 and 5 figures refer to lot responsibility.
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