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The first thing to do is to get the work stopped (even if that is not your ultimate intention). You can do that by calling council and telling them that there is unauthorised work going on, including an unapproved change of floor plan.
At the same time you can seek orders at Fair Trading, both through normal channels and, at the same time, by seeking an interim order to have the work stopped immediately.
That would then put the committee in a very strong bargaining position for the next stage of how you want to proceed.
However, if you go in at this stage talking about compensation for unauthorised work, you will muddy the water and may well end up getting nowhere
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Under section 106, the Owners Corporation has absolute responsibility for repair and maintenance of common property – this is in no doubt.
The question arises of whether or not you should have gone ahead and repaired the common property yourself.
Subsection 5 and 6 of Sections 106 say this:
(5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.
(6) An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss.
Now, this doesn’t precisely cover your situation but it gives you an avenue for a claim at NCAT, should your neighbours balk at repaying the costs.
A few things to consider that might help or hinder your case:
- Were all the areas repaired definitely common property?
- Were other owners aware that you were repairing common property at your own expense?
- Can you clearly show that it was only common property that was repaired and that the repairs needed to be carried out – or at least show a clear delineation between costs for lot repairs and common property repairs?
- Did you get a number of quotes for the work to show that the cost was reasonable?
- Have other owners repaired common property at their own expense?
If I were you at this stage I would present your “bill” for the costs – minus what you would have paid as part of your share – to your committee or strata manager. I would err on the conservative side and offer a couple of options for repayment (including a reduction of levies until the debt was cleared).
If they reject the claim, then the process would be to go to Fair Trading for mediation, and then the Tribunal.
I would not go in too hard and heavy at the beginning but it would do no harm to get some professional advice, even at this stage.
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That’s how by-laws are created under the terms of the Strata Schemes Management Act. Does your committee operate under its own set of laws?
Have they explained how they (whoever “they” are) think it works? Do they think they can just issue edicts and ban residents from areas of common property?
Even if there is a catch-all by-law that says access to the pool could be controlled by decisions of the committee, as and when required, those decision would still have to be on a strata committee agenda, voted on and minuted.
So, what do your by-laws say, exactly? (please, the exact wording)
If there is no by-law regarding access to the pool, then the committee and/or managers are going way beyond their remit.
If there is a by-law, then it should establish the rules in writing so that everyone knows what they are.
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Stop referring to it as a room and start talking about a built-in wardrobe and you’re covered by the Act for a cosmetic renovation.
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Yes, it is confusing but I believe the breakdown of responsibility is this:
Responsibility for fence between two lots is shared by the two lot owners.
Responsibility for fence between a lot and common property is shared equally byt the lot owner and the owners corp (the other owners collectively).
Responsibility for fence between a lot or common property and public land lies with the owners corp.
Anyway, the easiest way to do this is to get a by-law passed that says you can raise the height of the fence but that you, the lot owners, will take responsibility for its upkeep.
You would need to do this anyway as you are changing the outward appearance of the strata scheme and that requires a special resolution by-law.
If the fence borders public land you may also need to get the OK of the local council.
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Your biggest issue with this be the change of use – if it’s designated as a garage for parking cars in your strata plan, then you’d be in breach. Otherwise, I can’t see it’s a huge problem unless you are storing dangerous goods there.
The other issue is, where are you parking your car (if you have one)?
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Lady Penelope wrote:
There isn’t much that you can do if the council have deemed the building to be compliant.
I’m not sure I agree. The fact that the council says the slab is compliant doesn’t mean that you have to tolerate the noise transmitted through it.
There is a simple solution for excessive noise and that is to lay down a decent carpet with good underlay – by far the most effective way of reducing noise transmission through floors. This, of course, doesn’t suit the selfish people who would rather have an easy-to-clean hard floor regardless of the effect it has on their neighbours.
It is worth fighting this as it is affecting the quality of your life, and the value of your property, but you have to be organised and determined.
Have a close look at your by-laws and see what they say about flooring. It may be that you have a by-law that forbids hard flooring or the lifting of the carpet (if they’ve done that).
Also, get as many witness to the noise as you can, especially those who will sign statements to that effect.
Try to keep your owners corp/strata manager onside but make it clear to them that they have duties that they simply can’t shirk because it’s inconvenient. At the very least, you need to get your Owners Corp or strata manager to start sending breach notices over excessive noise to the rental agent.
This is a tricky one because you want the strata committee to at least concede that there is a problem, and not go to NCAT and say the only problem is you.
There is legal precedent (of sorts) for making landlords responsible for the noise created by their tenants, so the rental agent needs to have the facts of life explained to them too. You don’t have to put up with this and the fact that you are enduring intolerable noise because someone is running their apartment as a commercial business can only work in your favour.
If the owners corporation won’t do anything about it, you – as an individual owner – can seek mediation at Fair Trading as an obligatory precursor to taking act at NCAT. The grounds for action would be a breach of Section 153 of the strata Act, forbidding residents from creating a nuisance.
As a last resort, you could take the committee to NCAT over failure to fulfil their duties, one of which is to enforce by-laws. This would be under section 232(2) – failure to excercise a function.
However, as I said before, the more people you can get on your side, the better.
Also have a look at the information on THIS PAGE.
Given the perfect storm of a disengaged strata committee, a lazy rental agent and an absent owner, you are going to have to be super-determined to push this along. You might want to think about talking to a strata lawyer or, at the very least, the Strata Answers people who sponsor this website.
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questiontime10 wrote
I don’t consent to my fingerprints being collected (they don’t even have a biometric collection policy yet) so I doubt Security will let us in.
That’s not what they’re saying. But a little organised disruption might be in order. A large number of you could individually ask for access every five minutes or so.
As far as the by-laws go, as Sir Humphrey said, there is a process …
- There should have been an agenda with both the pool restrictions and the security listed as motions.
- Then there should have been a meeting at which 75 per cent of votes were in favour.
- Then the minutes should have been distributed within 14 days.
- Meanwhile, the by-laws should have been registered with the Registrar-General and have no effect until they are.
FYI the Australian Privacy Act says that an “entity that holds personal information must take reasonable steps to protect the information from misuse, interference and loss, as well as unauthorised access, modification or disclosure.” So you may be on to something there.
But first, see if there is a paper trail, as described above, then work out what your next step will be from that. But I think that at the very least keeping supervised kids out of the pool is pretty much guaranteed to fall over at NCAT if challenged.
Keeping them out of the pool with no adult on hand (pardon the pun) will be a lot easier.
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With all due respect …
Who laid the decking? Was it the OC or the builder when the place was built, or was it added on top of the existing surface as an option or by a subsequent owner? If the latter then I’d say it’s the responsibility of the owner.
If the decking was laid by a subsequent owner and fixed to the slab, and there is no by-law passing responsibility to the lot owner, then it’s more than likely the owners corporation’s responsibility, regardless of who installed it.
You are right, however about the lot owner being responsible for at least checking the drains.
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When you say there were no minutes, was there a proper general meeting with an agenda?
Also, the model by-laws say this:
8 Children playing on common property(1) Any child for whom an owner or occupier of a lot is responsible may play on any area of the common property that is designated by the owners corporation for that purpose but may only use an area designated for swimming while under adult supervision.
So is this ban on all kids, regardless of whether or not they are being supervised?
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The principal question is, is there anything wrong with the grouting right now? Or to put it another way, would the bathroom floor, waterproof seal, tiles and grouting be OK if the renovation owners did nothing?
Obviously, there’s an aesthetic issue, but there’s also a question of potentially damaging the seal if the original grout is removed and new grout applied.
If I were on your committee, my advice would be to say no and let the owner pursue you to the Tribunal if they feel strongly enough.
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I would say at first glance, your strata manager is right.
However, if you can prove that the owner’s neglect has contributed to the failure of the decking, then you can bill them for that (then fight it out at NCAT).
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That’s the one. Did it go to the Court of Appeal?
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Your legal opinion isn’t quite right – a strata levy increase might be imposed if there was a subdivision but a redistribution of unit entitlements can be agreed upon at any time, subject to subsequent orders at NCAT, which is made much easier if all parties are in agreement (and, yes, believe it or not, that can happen in apartment blocks). Have a look at section 236 of the Act.
Re the High Court ruling, I can’t lay my hands on it right now but it’s out there (and may even be somewhere in here) if anyone cares to look for it.
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It depends where the responsibility for the physical connection of the gas begins and ends. If it’s the supplier side, make a claim to them. If it’s the consumer side,, and you are an owner, make a claim against the owners corp for not maintaining common property … but bear in mind that everyone else can do the same so you may be no better off.
If you are a tenant, make a claim against the landlord for failing to tell the Owners Corp to fix it.
And thank-you for your kind words.
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