[Jimmy-T]

The only information that you need to take to them is that under Fair Trading’s  Common Property Memorandum, the owners corporation is responsible for the ceiling and common property walls (those adjacent to the external walls or other lots). Even if your OC hasn’t adopted this as a by-law, it’s still a very good indicator of the way the Tribunal will think, if it ever came to that.

You could then point them at Section 106.1 of the strata Act which requires them to fix common property and then at section 232.2 “Failure to exercise a function” which allows you to seek orders at the Tribunal if they refuse or ignore your request (which they have already done).

Also, I can’t find the reference to the legislation on this but, despite the principle that the paint inside your lot is your concern, I believe they are required to repaint the wall and ceiling after they have fixed it. It used to be part of the Common Property Memorandum but seems to have disappeared in later revisions.

I can’t find any reference anywhere to the 5mm rule and it sounds like one of those rules relating to other matters that strata managers latch on to, to keep the committee happy.

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[Jimmy-T]

OPERAKAT said:

Storing items in common property means that they have been dumped and can be removed or as in our building they as are classed as a fire escape hazard and removed!

I think you might find you need to have a by-law that says you can’t leave stuff on, or obstruct common property. There doesn’t seem to be one here.

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[Jimmy-T]

Ziggy said:

I thought owners entitled to vote, who together hold at least a quarter of the total unit entitlements, can ask for a meeting in writing.

Yes, that’s true.  Have you done that?  You didn’t mention it previously. You only said you had requested a meeting. Or are you just correcting my previous statement?

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[Jimmy-T]

Or you could alsways start Fair Trading proceedings under a Section 232.2 for failure to fulfil their duties.

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[Jimmy-T]

Ummm … the general meeting will be of the Owners Corporation, but someone needs to call it, and that would be the committee.

Also, if you are seriously strapped for cash, you might inquire about a payment plan, and to be excused from penalty interest (which also requires a general meeting).

But I was chatting to a senior strata manager today and he said that a lot of OCs are saying they want to reduce their levies and his response was that costs are likely to go up, due to more people working from home, while the relevant question is, which item in your budget was an over-expenditure when you agreed to it at your last AGM?

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[Jimmy-T]

You don’t even have a by-law about not obstructing common property?  Creating one would be the simplest solution – but then, does this resident need to have her walking frame outside her unit? If so, a little empathy would go a long way.

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[Jimmy-T]

100 per cent.  At present there is no law that can force owners to sell their unit but that will probably change under the current review of owners corporation laws.

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[Jimmy-T]

There are two stages to an eviction.  The first is the termination notice which concludes the current leases and contains the date by which the tenant has to leave.

The second is the “termination order” aka eviction notice, which can only be issued by the tribunal (NCAT), which a landlord would seek if their tenant failed to leave the premises despite having been given due notice.

From what I hear, your chances of getting a hearing at NCAT in the next few months are between zero and zilch.

However, my understanding is that if the tenant refused to leave, they would still be bound by the terms of the existing lease until such times as they did leave or signed another lease. It is therefore in your tenant’s interest to come to some kind of mutually acceptable arrangement with you.

A very good source of information is the Tenants Union website where factsheets like this one will help to ensure you are operating within the law, and not unfairly treating the tenant, whatever happens.

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[Jimmy-T]

I would be tempted to send the termination notice, as residential tenancy laws demand, but send a separate email saying that you  have done this because he wants to change the conditions of the tenancy and that requires the ending of the current lease, otherwise it would just roll on under the current conditions (which he doesn’t want).

That’s more than you have to say but it puts the onus back on the tenant, who seems like an opportunist of the first order.  Half rent and no arrears? Why don’t you just give him the deeds to the property.

I would call his bluff and say that you need to come round and take pictures so you can put the property on the market as soon as possible.  See how he likes them apples.

But seriously, he is the one who has demanded changes to the lease, and legally you are required to give him notice that the lease is ending.  A separate email as I outlined above would not (in my very non-legal opinion) negate the termination notice.

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[Jimmy-T]

Point taken, but the answer may be to ask your owners corp to reduce everyone’s contribution by using some of the capital works funds. Or at least allow you to delay payment without a penalty.

All the companies you have mentioned are probably making “sacrifices” that cost them no money. Owners corps work on a simple money-in, money-out basis.

If your owners corp can’t pay contractors, then the services will cease, people will lose their jobs and your quality of life could be severely impacted, right at the point when you are spending more time at home.

If the finances aren’t being properly managed, leading to excessive levies, that’s an issue for your AGM when they are approved or otherwise.

You could always try to identify some potential savings right now, but the word we’re getting from strata managers is that the demand for cleaning services, with more people staying at home, has gone up, not down.

 

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[Jimmy-T]

Scottie’s beaten me to the punch, here (again). But have a look at this and you’ll see why what she says is right on the money (no pun intended) … and why there are other potential consequences too.

The levies have been set to pay for anticipated costs.  Most of those costs won’t go away so you’re asking for a whole new budget with, potentially a minor reduction in your payments.

Negotiate, as Scottie said. That offers your best potential outcome.

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[Jimmy-T]

I understand there will be a process whereby tenants will have to prove to their agents or, if there is no agent, to Fair Trading in NSW or Consumer Affairs in Victoria, they they are earning less than 75 percent of what they were previously.  Similar arrangements will apply in other states.

One complication is that a lot of landlord insurance policies insist that you can’t claim for loss of income unless you have sent an eviction notice. For some reason, you can and must still do that in NSW, even though you know the tenant can’t and won’t be evicted.

However, I hear the system is different in Victoria where you have to apply to VCAT first to get an eviction notice and they won’t issue them.

Or something like that.  I’m waiting to hear more details.

In any case, things are neither as dire nor as disorganised as they seem.  There will be processes and the tenants still owe the rent. This is not a rent holiday but it means renters can go into arrears without losing their home – provided they can prove they are genuine cases (which was the point of the original post).

 

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[Jimmy-T]

You can seek orders under Sections 232.1 (e) and  232.2 (below).

232   Orders to settle disputes or rectify complaints

(1) Orders relating to complaints and disputes 

The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following—

(e)  an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,

(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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[Jimmy-T]

And another thing …

You can’t create a by-law that is superseded by a superior law.  Planning law is a superior law to strata by-laws so any by-law that you created that didn’t recognise that there was a development approval aspect to this would probably be invalid.  As such, your chair could declare it invalid at the start of the meeting.

Check your local council planning laws to make sure, then insist that the would-be subdivider submits a by-law that complies with both local planning laws and the DA for your building (which may dictate the number of bedrooms in any case).

Again, this is more of a planning issue than strata, but obviously there is an overlap.

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[Jimmy-T]

Most council planning laws require apartment owners to seek development approval before they change the layout of their apartments.

So get yourself a by-law that says unit owners must seek planning approval (and definitely NOT a complying development certificate) before they do anything like that, and, of course, you object when they apply.

By the way, you should maybe have gone to council with this complaint, not NCAT, as this sort of thing is very much a planning matter.

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