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Further to my previous comment and link to the NCAT fact sheet on costs, I think if you can provide documentary evidence of the behaviour you alleged previously, you might have a strong case. But it would have to be backed up by documents that proved the behaviour, for instance copies of notices to attend hearings attached to notices that the case had been dropped. Just turning up an claiming the resident has behaved badly in the past will probably not be enough.
Here are some criteria from the NCAT factsheet that might support a costs claims:
a) A party has conducted their case in a way that unnecessarily disadvantages another
partyThe failure to provide documents on time would support this claim.
b) A party has been responsible for unreasonably making the case take longer
See a) above
c) The relative strength of a party’s case or whether the case was hopeless
e) A party’s case was frivolous, vexatious or misconceived
In previous interactions with your committee, it may be that this resident has shown a detailed knowledge of strata law (albeit, misinterpreted to suit their position). Providing evidence of emails and letters in which strata law has been quoted, whether rightly or wrongly, could bolster a case that ticked all of the above boxes in c) and e).
If the resident has shown knowledge of the law, and the law is clearly not in their favour, then you are entitled to ask what motivated their actions when they would have known their case was likely to have failed.
Perhaps if you tell the resident that you will be instructing a lawyer and that you will be seeking costs it might get them to back off.
One other thing, I think you need to make it clear that you will be seeking costs in your initial application. I recall a case recently where the winning side didn’t get costs awarded becasue they hadn’t asked for them up front but the losing side did because they had.
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Hypothetically, if a tenant was bordering on becoming a vexatious litigant, and had form such as previous records of lodging applications with NCAT to be a nuisance and subsequently withdrawing them just before a hearing, what were the chances of seeking costs against the said tenant?
Have look at section 6 of this document.
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By the way, I suspect the Member is asking you to give him something he can rule on, rather than asking him to judge a beauty contest. Don’t say, as a typical example, “this owner is a serial pest who knows he’s doing the wrong thing but does it just to annoy us …”
Keep personalities out of it. Nail the law and the Member will hammer the miscreant.
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It all seems reasonable to me. Not sure what you meant by “Or should we maintain the common walls element?” unless the boundary wall in the exclusions is not referring to the common wall.
I am also unclear as to the status of fire inspections …. I don’t see why you should be exempt, but you never know.
Have a look at theses links to web pages from Bannermans lawyers and Strataman.
They cover the same ground but in slightly different ways.
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I have to preface this by pointing out that the following is my opinion and doesn’t constitute legal advice. If the NCAT member wants legal arguments, you should employ a strata lawyer and seek related costs at the tribunal.
In my view, there are two issues here, and I’m assuming the spy-hole is a recent addition. The first is the unapproved changes to common property, the other is the installation of the camera covering an area where privacy is expected and, more critically, employees may be working.
Section 108 of the Act requires special resolutions to be passed by the owners corporation before changes are made to common property. This clearly hasn’t happened in this case.
Even if the spy-hole was there before, the inside of the door is common property so attaching a camera to it could be a breach.
Section 108 also states that without a by-law saying otherwise, responsibility for maintenance of the changes rests with the owners corporation.
Section 110 allows for minor alterations to be approved without needing a special resolution (just a general resolution) but they have to be approved by the owners corporation.
Camera and spy-holes are not listed among the permitted changes and, in any case, section 7(c) excludes changes to the external appearance of a lot (which a spy hole in a door would be).
More specifically, section 111 of the Act states
An owner of a lot in a strata scheme must not carry out work on the common property unless the owner is authorised to do so: (a) under this Part, or (b) under a by-law made under this Part or a common property rights by-law, or (c) by an approval of the owners corporation given by special resolution or in any other manner authorised by the by-laws.
In terms of building surveillance, your common property will at times be a workplace, for cleaners and the occasional tradie. This website says that, under the NSW Surveillance Act 2005, notices must be placed in work areas covered by cameras.
It is a subtle point whether or not this only applies to employers but, since the owners corp might be the employer and the owner is a member of the owners corp, it may be applicable.
I think you have enough legal leverage to require this owner to remove the camera and repair the door.
There is also the question of the external appearance of the spy-hole (if it is a recent addition) giving people the sense that the building is insecure, alarming residents and putting off potential purchasers and tenants, thereby affecting the value of the entire block.
Again, I would talk to an experienced strata lawyer and hope you can recover the costs.
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Will there still be 600mm of clearance for other residents if the chair lift fails while it is part way between floors?Looking at the specs for a popular brand of stairlift, the track would reduce the width by about 170-200 mm and the actual chair by between 450 and 500mm, meaning that would have to be a pretty wide staircase for the chair and track not to be some sort of potential obstacle.
That might be OK for an internal stairlift in a private home but I’m sure the local council’s fire safety inspectors would have something to say about installing one in an apartment block, especially if the staircase was the only escape route in an emergency.
We will be discussing the external lift idea in this week’s podcast, explaining why it may not be the crazy, unaffordable option you might think.
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Good question and I have a few answers probably best expressed as a rough timeline.
Believe it or not, discussions on what to do about short-term letting began formally in February of last year.
Round about the same time, NSW State government agreed on a raft of short-term holiday letting proposals, including a limit of 180 nights a year in greater Sydney for unhosted holiday lets, and no limits outside of greater Sydney, except for Byron shire which could impose its own limits, to a minimum of 90 nights a year.
In February this year Byron council decided not to have a “precinct” plan with different rules for diferent areas, and just settle on one option for everywhere in the council area.
In May this year, the state government announced the first phase of its STHL regulations – including the option for strata schemes to ban short-term lets – and Planning NSW invited Byron Shire council to propose a 90-day minimum plan outlining what it wanted and why it wanted it.
Then Covid-19 effectively shut down tourism to and within Australia.
Local tourism is already picking up and, with the Queensland border still closed to Sydneysiders, Byron shire is apparently fully booked.
Faced with the mutually exclusive demands from Covid-hit businesses and residential tenants, Byron council is still seeking public views on what residents want, and is inviting submissions from interested parties, which will close on November 27. You can make your views known and access two key discussion documents HERE.
Surveys in the discussion documents suggest that it will take about four years for Byron Bay tourism to bounce back to 2019 levels, so you might expect a little finessing as the council tries to balance the need to get tourist figures back up, with the opportunity to protect residential lets in the area.
So, to answer the question of what is happening with the 90-night limit, the answer is nothing but talk, at least for now. And since the much-vaunted “Party House” blacklist is no threat as it won’t even exist before June, all you can do is batten down the hatches over Christmas and hope for the best in the New Year.
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Have a look a these previous posts HERE and HERE.
Biometric security may feel like overkill in your situation and it has its drawbacks, as discussed.
Because people forget things, never read their emails and generally want to be able to come and go without thinking about it, I am drawn to a combination of bluetooth and keypad activated entry systems.
Most people have a phone and know how to set up bluetooth connections. For those who don’t, a reprogrammable keypad would provide an option as well as being a backup for forgotten phones.
In the case of a rapid turnover of tenants, illicit Airbnb or overcrowding, keypads might not be great but then, unless you have biometrics in your key fobs, anything can be by-passed with dead-letter drops and the like.
Oh, and $200 for replacement clonable key fobs is a rip-off in anyone’s language. Your instincts to look for a change are sound.
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Looking through previous posts for something else entirely, I came across this thread from last year which covers much of the same ground. Worth a read, as it has more links to previous cases.
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We have bylaws about this, the first thing is to get the building manager and strata manager to act and check if the upstairs unit violated the bylaws. Even such simple thing seems to be so difficult.
Under section 122 of the Act, the owners corporation’s agents can enter a lot to see if work needs to be done on common property. If the lot owner or resident refuses to let them, then they can seek orders at NCAT. If they still refuse, and obstruct a valid NCAT order, they can be fined up to $5,500.
So this is what a professional strata manager would do:
1. Approach the owner and say there seems to be a problem with the floor, which is common property and can we come and see if we need to fix it.
2. If they refuse, the SM should commence mediation at Fair Trading with a view to getting NCAT orders, again on the grounds that there is a problem with common property and they need to see how it can be fixed.
3. If that fails, then proceed to orders from NCAT.
If there is a valid by-law in place about not lifting carpet, then the owners corp can proceed on that basis. If they do have carpet but they are just noisy, then you as an individual can take action, although that is a lot trickier.
I’d also be asking questions about the professionalism of your buildin manager or strata manager, if they weren’t able to offer that solution.
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And, on the principle of making lemonade out of lemons, have you ever considered installing an external lift (like these) which would make the whole block more accessible? It may not be possible but if you have a stairwell with one wall facing the outside of the building it would add value to all the units on the first floor and above.
I’m sure stairlift guy would be happy to contribute and, given your previously mentioned hassles with getting furniture in and out, your neighbours may be happy to pay too. Just a thought.
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OK, that changes everything (I think). I am now reading this that you have 18 lots, physically split into two stairwells, one servicing six units and the other servicing 12. You now need to persuade three other owners with unit entitlements, including yours, totalling more than 25 percent of the UEs for the whole block to object to the proposal.
Ruling a motion out of order can only be done if it would be in conflict with other by-laws, in conflict with superior laws (such as local council planning) or unenforceable.
I suggest you contact the council to find out if planning permission would be required and if so, that may be your option for ruling it out of order.
By the way, it’s a quirk of strata and planning laws that you don’t have to bring common property in older buildings up to code unless you are changing it, in which case you do.
It may be that the installation of the stairlift alters the usable width of the stair to render it non-compliant and according to the literature that I have found referencing Australian Building Standards, the stairs would have to be 600 mm wide.
If the the installed chairlift reduced the effective with of the stairs below 600 mm, you might have grounds for ruling the motion out of order.
If not, then the way forward may be to find a compromise that is the least intrusive or disruptive.
And in the meantime try to alert as many owners as possible to the simple fact that they have not been given enough information on which to decide on this, that as a result they don’t know the long-term implications of this, and if they make the wrong decision now it could cost them financially in the long run.
Just don’t make it personal – that way lies unnecessary pain and grief, and often bad decisions made for the wrong reasons.
AS 1657 – 4.1 WIDTH AND ANGLE OF SLOPE
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Stairways shall be not less than 600 mm wide measured between the inside edges of the handrails.
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One strata committee (SC) member … owns 2 units in the strata scheme … We know that when voting at EGMs and AGMs he has 2 votes (or several unit entitlement votes). But does this apply at SC meetings?
Absolutely not.
Quoting Page 9 of Fair Trading’s Strata Living handbook on strata committees, “Each member has one vote,
unless they are: unfinancial (owing unpaid levies), or the tenant representative.”This is backed up in their online fact sheet on committee meetings which says: “Each strata committee member, other than any tenant member, has one vote.”
However, he could nominate anyone to represent the second unit on an extra seat on the committee, but only provided he wasn’t standing for election himself. In that case, he’d need to get another owner to nominate the additional member, and get a majority of votes at the AGM for both the numbers on the committee and the proxy nominee.
I would suggest that this owner reads the regulations before he starts quoting them – that might save everyone a lot of hassle. A sense of entitlement is not law in anyone’s book.
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My point was meant to note that many laws, including strata laws and regulations, can also apply to “occupiers”.
Yes, I got that, and it’s true. But it’s also possible that the owner simply wants it so his mother can visit (very frequently, you’d think), and I don’t think guests are considered to be the same as occupiers.
Either way, as I said, what lies at the heart of this problem is information, or the lack thereof. I think the OP is entitled to rev up the only other owner he needs to block the vote until everyone has sufficient reliable information on which to judge the issue.
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I suspect the lot owner’s mother will be living there.
Perhaps, but the OP says it’s not for an owner or tenant. You may be right or you could be wrong, but we all know what “assume” does.
Wouldn’t the owner have said he needed the chairlift for his mother who was moving in? Or maybe the whole problem here is that the owners corp is only getting half the story and we are only getting part of that.
Fundamentally, it seems this is about someone applying for a major change to common property and potentially shooting themselves in the foot by not giving sufficient detail, while the owners corp is seriously short of a by-law covering additions and alterations to common property.
And I can’t help put wonder if a chair lift might not also be handy for all those hard-to-move bits of furniture the OP mentioned.
Thanks for the link to the disability story. This issue is of nationwide concern as the laws about dicriminating against people with disabilities are Federal (although there are state laws too).
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