[Jimmy-T]

This from the Office of the Australian Information Commissioner (OAIC):

Our office can provide information and guidance on the operation of the Privacy Act 1988 (Cth) (the Privacy Act), such as available online in the Australian Privacy Principles (APP) guidelines.

APP 6 permits the disclosure of personal information in certain circumstances, such as if required or authorised under another law, but APP 6 itself does not compel the disclosure personal information.

Furthermore, the APPs generally do not apply to organisations with an annual turnover less than $3million. As such, we are generally unable to advise on whether an owners’ corporation with an annual turnover of less than $3million must make emails obtained for inclusion on the strata roll available to owners.

So what they’re saying is that since the Australian Privacy Principles don’t apply to strata schemes (of under $3 million turnover) they can’t say whether or not they apply.

How stupendously unhelpful.

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[Jimmy-T]

Your by-law demanding compliance with the DA for the building should be enough.  Your challenge is to prove that the visitors are holiday rentals.

Strategically placed cameras on common property should gather the evidence you need and but you can start issuing Notices To Comply as soon as you are sure short-term letting is occurring.

Our friends BnbGuard will help with the evidence gathering.

Regarding the cancelling of swipe cards, what I would do is send out a notice to all owners that they are required by law to register the names of their tenants (under Section 258 of the strata Act), subject to a maximum fine of $550. Fourteen days after you issue the notice, you announce an “audit” of all swipe cards, citing concerns about security breaches.

This audit will require the registered tenant to present their swipe card and 100 points worth of identification, to the building manager, strata manager or secretary on a certain date. After that, you could just cancel the cards and say unknown people had been seen entering the building and the cards were cancelled as part of a follow-up to the security audit.

Be ready for very angry holidaymakers who can’t get into the building and homicidal holiday rental “hosts” who will soon be losing money hand over fist.  But if you hit them hard with every option available to you, they’ll soon get the message and go elsewhere.

But call Bnbguard – they are the experts in this.

 

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[Jimmy-T]

The cost of the audit will depend on the size of the scheme (number of lots) and the complexity of the finances. I have seen the figure of $10 per lot with a minimum charge of $80 quoted.

There would be no harm in getting a few ballpark quotes.  Or you could contact our friends at the OCN for their advice.

The Australian Auditing Standards refers to the professional standards of the auditors, including them being qualified and independent – you can find out more HERE.

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[Jimmy-T]

We can’t adjudicate on this.  You have to decide what you want.  Do you want to stay and fight the noise, or do you want to break your lease without penalty?  Until you make that decision, any advice is pointless.

Alternatively, how about applying to Fair Trading for a rent reduction because of the noise factor.  The worst thing that could happen would be that it was granted and then you would be stuck until your lease ran out.

 

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[Jimmy-T]

I should add that if you don’t want to start a war with (rather than in) your block, you could take action against the upstairs neighbours directly.  This however tends to descend into “he said, she said” although it can lead to a more immediate resolution.

Once again, I find myself advising Flatchatters to speak to StrataAnswers who will advise you on your best course of action for a modest fee, before escalating it to a strata lawyer, which may also be necessary. In the meatime look here and here for information about applying to NCAT for orders.

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[Jimmy-T]

Perhaps the first stage is to write to the chair and/or strata manager saying something like:

“It is with considerable regret that your failure to take seriously our intolerable situation caused by the illegal flooring in unit X means I now have to take action at Fair Trading and NCAT to remedy the problem.

“This committee had the opportunity to fix this problem right at the start and refused to do anything. As a result of your inaction, I now have no choice but to seek mediation at Fair Trading with a view to pursuing orders under section 232(2) of the Strata Schemes Management Act requiring the committee to seek the reinstatement of properly insulated flooring in the aforementioned unit.”

And then apply for mediation.  Mediation is partly an opportunity to resolve the problem without resorting to the Tribunal, but it is also a mandatory prerequisite for applications for (most) orders at the Tribunal.

By the way, do your by-laws have any mention of flooring or any kind of noise or nuisance?

 

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[Jimmy-T]

Not involving the committee is tying your own hands behind your back.

The committee has a duty to enforce the by-laws of the building as regards noise and residents’ behaviour, as well as maintaining common property.  The floor is common property.

My advice would be to pursue a section 232 (2) complaint against the committee for having done nothing to remedy your issue. That will force them to take the action they should have taken years ago.

But first, you could talk to a strata lawyer or, perhaps, StrataAnswers about what your options are at the Tribunal, epsecially if you’d rather take a case directly against the upstairs owners.

And that is fair enough. People who are happy to destroy your peace and quiet to suit their lifestyle deserve no consideration or sympathy.  You’ve been way too accommodating.  Time to go Braveheart on their asses.

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[Jimmy-T]

Owners are responsible (to some extent) for the peaceful enjoyment of their lot by their tenants.  If the owner is not prepared to do anything to persuade the committee to moderate the other tenants’ behaviour, then you can argue that he has failed in his responsibilites.

I would lay odds that the property manager hasn’t even told the landlord about your complaints. Why?  Because that would mean more work and it’s easier to let you suffer than it is for him to pick up the phone or write a letter and give the landlord the impression that not everything is sweetness and light with his property.

Just make sure everything is documented.  If the tenants go before you get a hearing, celebrate and withdraw the application.  Tell the landlord it’s all the property manager’s fault and enjoy your new peaceful existence.

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[Jimmy-T]

Hi Jimmy, thanks for the checklist for apartment blocks preparing for a bushfire. Living in a coastal small tourist town we have just come through a couple of crisis weeks. Your list is terrific and I have a couple of things that we found to be very important to add .
1.At least one but more if available of good strong torches. Keep the batteries charged or have new batteries for them. We found these invaluable as it was pitch black in the middle of the day as the fire got closer.
2 A small camp stove that uses gas cartridges. We had several days with no power and as there is no natural gas on our coast we are all electric. Luckily we had a coffee plunger tucked away with some ground coffee and each morning we boiled up some water on the gas and filled our thermos so we had coffee and tea all day. ( Thankfully).
3. Keep your car filled with fuel at all times if possible. We were lucky enough to have filled our tank the day before the warnings went out. People were in a queue for at least 800 metres for petrol or diesel and only one of the three service stations in town has been open in the last two weeks even though tankers have pulled in and filled their tanks. The owners have obviously evacuated from this town .
4. Lastly, don’t forget to have an emergency food stash that you replace items as soon as you use them as the supermarkets could not get replenished as highways were closed. Luckily we had a good pantry so we did not starve.
It’s great that you have published this checklist Jimmy. We are going to circulate it to the other owners in our apartment block

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[Jimmy-T]

Flame Tree said:

“Of course you can directly discuss this with the neighbors involved, if, you feel it safe and productive to do so.”

It’s been established (in the post immediately before yours) that this has been tried to no avail. And there’s nothing “politically correct” about not punishing other people’s children.

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[Jimmy-T]

It seems you have already reached the stage of asking the landlord to allow you to break your lease.

have a look at this factsheet which explains how to do it legally and without any comeback: https://www.tenants.org.au/factsheet-16-ending-tenancy-early

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[Jimmy-T]

Breaking your lease may be the easiest option and you can do that with the landlord’s permission.

It’s when they refuse that you go to the Tribunal.

So the process would be:

1. Ask the landlord if they will approach the committee to do something about the noisy neighbours.  It’s in their interest to do so as otherwise they will have a series of unhappy tenants.

2. If the landlord declines or their efforts fail, ask if you can break your lease because of the disruption.

3.  If the landlord refuses, then you go to Fair Trading and NCAT.

Remember at stages 1 and 2 to impose a reasonable deadline for action.

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[Jimmy-T]

In the absence of the 25 per cent vote, if I were the secretary, I would be very reluctant to put the Owners Corp to the expense of an EGM to help someone who won’t pay their bills.

Neither the fact that the owners is unfinancial nor that there is an impending NCAT hearing presents any legal impediment that I can see to holding the EGM (but I am not a lawyer)  However,  there is no compulsion to do so either, so why bother?

In the absence of a compelling reason to hold the meeting, the secretary doesn’t need to provide a reason for not doing so.

What goes around, comes around. The unfinancial owner is depriving the other owners of their share of funds and most buildings don’t have that much leeway to carry other people’s debts.

Also, if the recalcitrant owner can’t raise the 25 percent of support required to call an EGM, they would have very little chance of getting the 50 per cent of votes required to pass approvals of their work let alone the 75 per cent of support for special resolutions that may be required as part of the renovations.

The unfinancial owner could, theoretically, take action under section 232(2) of the Act to compel the Owners Corp to hold the EGM except the already scheduled hearing would occur before the new one.

Also, under Section 232(3)(b) A person is not entitled “to make an application for an order under this section if the person has commenced, and not discontinued, proceedings in connection with the settlement of a dispute or complaint the subject of the application.”

I can’t think of any other way the unfinancial owner could pursue this – but I am not a strata lawyer and perhaps they should consult one.

That said, they would make their lives easier for themselves and the neighbours – whom they are doubtless annoying – by paying their bills before they start trying to get support from the very people who are carrying their debts.

 

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[Jimmy-T]

As long as he has one property and it is financial, then he can still stand for election and vote.

However, only the unit entitlements for that property are counted in an vote at a general meeting. His unit entitlements for the unfinancial properties do not count in any vote or election at a general meeting.

He may not also nominate another person for election to the committee as that nomination has been used up and an owner can’t nominate anyone else if they are standing for election themselves. If he were financial in, say two other properties, he could nominate two other people.

If it makes it clearer, you have to differentiate between the person and the lot owner.

If he owns lots A, B and C, he should be considered as three different entities – Owner Lot A, Owner Lot B and Owner Lot C.  If lot A is financial but the others aren’t then the owner of Lot A has full voting rights but the owners of Lots B and C don’t.

Frankly, I would be more worried about him paying all he owes on the other lots then nominating his mates on to the committee, regardless of whether they were owners or not.

And how come he gets himself elected every time?  Just reduce the numbers on the committee, and make sure he has fewer votes than anyone else.

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[Jimmy-T]

According to this factsheet the balcony slab is common property but, unlike in NSW, anything attached to it is lot property, and that would include the membrane.  However, the owners corp can agree by special resolution to fix lot property, especially if it affects other people. That said, it sounds like they are unlikely to go down this road.

Also, I wonder how we can be sure the problem is entirely in your lot and not the adjoining one with the shared balcony.  The 10-year building warranty claim may be your best bet but I would be trying to get the people below and the people next door to pressure the strata committee to engage in supporting your claim, rather than just washing their hands of the problem.

They’ll be glad of your assistance when the next balcony and the next one after that, starts to leak.

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