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I want the landlord to Agree to show me proof of receipts that work has been carried out and can you email me a copy of proof of receipts when work has been carried out. Three days later , surprise surprise no email reply agreeing to my fair terms. Which says to me, the owner won’t spend any money on handyman unless he is forced to by a legal body eg Fair trading.
Or maybe they’re just responding (by not responding) to someone who is basically saying “I don’t trust you to do what you promised …”
Maybe dial it down a little and see what happens. If nothing, then maybe Fair Trading, or maybe a civilised chat with the landlord about their tenants … Noise is 50 percent behaviour … if everyone is annoyed at you, receipts aren’t going to make any difference.
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At the risk of promoting one of our sponsor (and, hey, why shouldn’t we?) I know that a troubled building where Strata Choice were compulsorily appointed strata managers a couple of years ago has recently signed them up for the next three years, so it’s not all bad news.
If you are going for a compulsory appointment, you need to take the manager you want in with you or you will get the next cab off an often unimpressive list. You might get the Rolls Royce or you might get the clown car.
Find a strata manager who seems to understand the issues and is honest about how much it’s going to cost and what they are going to do. And remember that they have to do things by the book … which is why you needed them in the first place.
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If one of the sub clauses of the renovation by-law is unenforceable does it mean the whole of the renovation by-law is unenforceable?
Section 136 (2) of the Act says: “A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.” (My emphasis.)
I would interpret that as meaning it’s only the invalid bits that are invalid
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Do you really know the noises are coming from these specific neighbours. (In a high density area, sometimes noises from elsewhere turn out as the problem.)
This is a very relevant point and and a phenomenon I have experienced myself – I was complaining about noise from renovations I thought were happening in the unit above. But it turned out to be empty and the flat diagonally down one floor, below the one next door, was the culprit.
I highly recommend listening to our chat with Brent Clarke in a recent podcast, when he described how using WhatsApp helped to track down late night shower noise – and result in a fix. If nothing else, contacting people who have also heard and been disturbed by the noise can only strengthen your case if you do go to the tribunal.
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… convene a meeting, get the 3 spaces made legal, and move forward to the tribunal for the parking infringement.
See Kaindub’s comments below. Your development approval would have come with certain conditions and that includes the number of parking spaces for your block. Now, your local council may be OK with this change of use (because that’s what it is) but there’s every chance that they won’t be. And you can pass all the by-laws that you like, but they can’t contravene superior laws … like Planning laws, for instance.
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I’ve seen quite a bit of legal advice and NCAT judgments that argue the by-laws are a contract between each owner and not between the owner and the OC. Therefore, while the OC can enforce by-laws they are actually under no legal requirement to do so. Interested in anyones thoughts.
The owners corporation has a duty to enforce its by-laws – although it may be only when asked to do so (i.e. there is no duty to do so pre-emptively). I have never read anywhere that by-laws are merely a contract between individual owners.
The contrary was confirmed to me by the Fair Trading (now Services) Minister Victor Dominello who quoted his Second Reading of the current Act, in which he said “Members of the strata committee will now have a statutory duty to act for the benefit of all owners and to exercise due care and diligence in their role.”
He said that implied a duty of care to enforce their by-laws. If the owners corp doesn’t have a duty of care, why does section 232(2) (below) even exist?
Good luck with the acoustic tests.
Section 232 (2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if—
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
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Whilst I am going to generalise, I’d bet the person is a tenant.
Well, you know what they say about “assume” – it makes an ass of u and me. The last time a case like this crossed the forum, the miscreant was the son of the owner; the time before that, it was an owner himself. IF the person is a tenant, some of what you say may be true.
… as you are not an interested person as defined in the act, you are not legally entitled to see the OC records (to get the owners details).
You’re half right, but for the record you are wrong about the definitinion of “interested persons”. Occupants are defined as “interested persons” under section 226 of the Act. But you are correct in saying that as non-owner, tenants have no rights to see the records of the strata scheme.
That means the tenant CAN take action at the tribunal, but against whom is the critical question. However, I have a feeling that dealing with someone who threatens people with a sword is not going to be easily resolved by issuing notices to comply.
This strikes me as more of a mental health rather than a strata issue and anyone in a similar position should perhaps read the Memorandum of Understanding issued by NSW Health and the NSW Police force or call 1800 011 511 for advice and information.
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What do I do and how do I explain to NCAT?? To top it all off the neighbour is the Secretary of the Owners Corporation and the Strata Committee has refused to get involved saying it’s an issue between two neighbours. Please help
I think I might start with applying for a Section 232(2) action against the Owners Corporation for failure to enforce the scheme’s by-laws. If you were feeling particularly litigious, you could also apply to have the secretary removed from office or, from the committee entirely, under Section 238 for having “failed to comply with this Act or the regulations or the by-laws of the strata scheme.”
Be clear on this, it is enshrined in the Strata Schemes Act that the owners corporation has a duty to enforce its by-laws … and I have that directly from Minister Victor Dominello himself.
Now, to be fair, I’m not suggesting you actually follow through with these threats. But one significant element of them is that you have to apply for a madatory first step of mediation and the committee and the secretary will be served with requests to attend, with the reasons given for the mediation spelled out. If mediation doesn’t put a scare into them, you then at least have the option to proceed to NCAT.
You’d have to consider the next step carefully but, considering the impact of a noisy floor above on the value of your property, it might be worth serious thought.
As far as the potential for selective testing goes, send a message that you will want to see evidence (as in pictures) that temporary floor coverings have been removed to permit proper testing. You might add that if carpet has been laid, you will require a binding undertaking that it will not be removed.
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This sounds very like this question from WA. Coincidence? An epidemic of grumpy old neighbours parking where they like? Or something more sinister? Is one of the Oldies newsletters telling their readers to ignore by-laws becasue they are untouchable?
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Informal meetings are a terrific idea – and no, you don’t need an agenda or minutes.
You can use them to decide on what should be on the agenda of the next meeting or to have a relaxed chat with a resident who has raised an issue. A lot of good work can be done, just as long as you remember that decisions made need to be formalised at some point, via a properly constituted meeting with agendas and minutes.
And do it openly, otherwise someone will accuse you of having secret meetings with sinister intent.
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Time your SM went back to strata manager school (if they ever attended). Point them in the direction of section 7b of Fair Trading’s Common Property Memorandum which defines what is and isn’t common property:
7. Parking/Garage: (b) electric garage door opener (motor and device) including automatic opening mechanism which serves more than one lot
Sounds like your strata manager is more interested in keeping the committee onside that doing their job properly.
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All the comments about council approval are correct, including provision of parking spaces and change of use from a garage to a gym.
What is critical here, though, is whether or not your neighbours are going to object – they are the ones who will dob you in to the council if you don’t have official approval and they don’t like what you’re doing.
There are a few cases in the Flat Chat annals of people turning their garages into games rooms, rock band rehearsal spaces and TV lounges but it’s only when they annoy their neighbours, either because of excessive noise or because their car is now parked on common property, that the Council sends someone round.
A quiet word with your neighbours would certainly be worthwhile in the first instance, but if the Coucil sends someone round and finds a wall where a garage entrance used to be, they may have issues.
By the way, you can’t expect your strata committee to officially approve something that hasn’t or wouldn’t be OK’d by council planners.
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How old is the building? If it’s less that six years old you might be able to get it fixed by the builder/developer as a defect.
Otherwise, it’s a question of whether or not this is a common property wall. The Fair Trading Common Property Memorandum says the pipes within a common property wall are the responsibility of the owners corporation but pipes downstream from the stopcock, that service only that lot and are in a lot property (not common property) wall are the lot owner’s responsibility.
What’s a common property wall? External walls separating your unit from another unit or from common property (e.g. hallways or the exterior of the building). I’m not sure if an internal supporting wall that’s part of the building’s structure is common property or not. But if the wall concerned is external then the piping is the owners corp responsibility even if, as they say, the taps are yours.
By the way, the Common Property memorandum is supposed to have been adopted as a by-law for it to be truly effective but you can bet Tribunals will use it as a guide if it hasn’t.
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