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[This post has been edited to take in the more informed views (below) from Austman – who lives in Victoria]
Your neighbours are right, in that the Insurance company probably has no liability for the results of age, wear and tear.
The whole structure may be common property and, as such, under section 46 of the Owners Corporation Act (2006), the Owners Corporation (you and the other owners in the block) MUST repair and maintain it – no ifs, buts or qualifiers. [See Austman’s post below]
The only way the OC would not be liable would be if the original plan or special by-laws gave responsibility for the common property to the individual lot owners (not impossible).
If this is an Owners Corp liability, your real problem will be the OC saying they don’t have the money (they can get a loan) or asking you to wait while they see who else needs the work done (your call on that).
But the bottom line is, if it’s common property they have to fix it. And if anyone is injured in the interim, it’s the OC’s responsibility – and people who delayed the remedial work could be held personally responsible.
Time to gather all the facts about who owns what (again, see Austman’s post) and then organise a sit-down and a calm chat with your neighbours.
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Send the Owners Corp/Strata Manager a bill for the damages, with a reasonable time for them to pay (say, two weeks).
State on the claim letter that the Insurer has said they would have paid for this, but for the excess which should be covered by the owners corp. (If you can get this in writing, even in an email from the insurer, that will strengthen your case).
Tell the strata manager that if they fail to pay within the 14 days, you will be pursuing the matter at the small claims court, where you will also be seeking costs.
You might also point out that, under strata law, they will not be able to charge you for any proportion of those costs incurred.
Regarding the small claims court, here is a very helpful fact sheet from the LawAccess website that explains the whole process.
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You need to look at the terms of your contract with the strata manager. It could be that you are allowed one agm and, say, one egm per year. Or maybe they were just being generous with the first one.
My immediate thought is that $350 doesn’t sound excessive to me, given that an agenda has to be prepared and distibuted, and (perhaps) a location organised. Then there’s the strata manager’s time in attending the EGM.
Of course, if all those other charges were to be put on top of the SM’s fee, that might be a different matter. Have a look at the contract and see what it says.
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Maybe wise to check with a lawyer first but ….. can you turn off the water to that particular apartment?
Brilliant, Lady P. Absolutely brilliant! Except, on reflection, you might end up turning off water to the whole floor, or the building.
As for accessing the property without the owner’s permission, according to Section 122 of the Act, you can do so in an emergency. Not only that, if the owner has refused permission for you to enter (in an emergency) that have to pay for the door to replace the one you just opened with what firies call the “big red key” (a fire axe).
So what constitutes an emergency? Forget damage to property. What about the potential interference with electrical wires and making the whole building “live”. What about structural damage engdangering lives.
All you need is an email from a structural engineer or fire safety officer confirming that immediate action is required and off you go (but take a member of the local constabulary with you if you think there’s something nefarious going on in there).
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Kenuppa wrote:
A multiple charging station on the Common Property may be problematic as owners, occupants and their invitees are not permitted to park or allow a vehicle to stand on Common Property, without the Body Corporate’s written approval.
So you give them written approval to park there for as long as it takes to charge their vehicles (and no longer).
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Fair Trading says you can use the Common Property Memorandum to “clarify” who’s responsible, although it doesn’t have a direct effect unless it has been adopted as a by-law. That said, NCAT is likely to use the Memorandum as a guideline for it’s decisions.
So, what it says is that common property includes
- fuses and a fuse board in a meter room,
- electrical wiring serving more than one lot
- light fittings serving more than one lot
- power point sockets serving more than one lot
- smoke detectors whether connected to the fire board in the building or not (and other fire safety equipment subject to the regulations made under Environmental Planning and Assessment Act 1979)
Lot responsibility includes:
- fuses and fuse boards within the lot and serving only that lot
- electrical wiring in non-common property walls within a lot and serving only that lot
- light fittings, light switches and power point sockets within the lot, serving only that lot
So where does that leave Erte? If the wiring is going inside non common property walls, then the owner should pay for that themselves. The same applies to sockets that are outlets on any walls.
But what about the wiring that is currently on the internal surface of the common property walls, and is going to be concealed within those walls?
The owners corp would be within its rights to say that the owner can’t use common property walls without OC permission, so that might be a starting point for negotiations (which you might hope would be less combative thereafter.
So go to Fair Trading for mediation by all means – but remember what that is all about: compromise and reaching a mutually acceptable solution. If you want a definitive ruling, you will have to go to NCAT.
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Sir Humphrey wrote:
The question I would have is: This system sounds like it has been set up by a provider who might expect to manage the system for years into the future, handling billing and maintenance for the OC. In the ACT, the Unit Titles (Management) Act prevents an OC from contracting with a service provider for more than 3 years. Is this the same in NSW?
I think strata management agents’ contracts are the only ones limited to three years in NSW. Some embedded infrastructure agreements are being signed for 99 years, but consumer protections in NSW allow lot owners to opt out of embedded energy agreements, so that could complicate things.
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Every three years, the strata management contract is going to come up for renewal. The committee will do its “research” (because no one else will) and will come up with its favoured candidate for a renewed contract.
So, in a dispute between residents and their committee, which side is the strata manager most likely to take.
Fortunately, we have Section 232 of the Act that allows any owner or tenant to seek orders at a Tribunal, forcing the committee to do their job.
A smart strata manager will guide their committee into doing the right thing without necessarily taking sides. A bad strata manager will encourage a “them and us” mentality. As with everything else in life, it comes down to the quality of the people, not the profession.
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Do your by-laws say anything about smoking or smoke drift?
Either way, your strata manager is either ignorant, lazy or both. At the very least they should be raising this with your committee. Cigarette smoke drift is defined as a nuisance under Section 153 of the Act. How many people have to be affected before the Owners Corporation does its job?
Tell the strata manager that if they don’t do something you will be taking action against them and, especially, the Owners Corp Under section 232(2) of the Strata Schemes Management Act 2015.
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Put a motion on the agenda of the meeting, asking all committee members to state whether or not it’s their intention to stand for re-election at the next AGM.
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stressed said:
I acknowledge that there is no specific section in the NSW legislation stating that a by-law must not impose a monetary liability on the owner of a lot (other than an exclusive use by-law) as there is in Queensland.
And there you have it. That’s why it’s illegal in Queensland – because the law says so.
The OC, in my strata block has refused to return renovation bonds even though there has been no damage to common property.
And that’s your problem – not that the law is not being interpreted correctly, but because your committee are crooks. There are options for you under common law. Send them a bill then take them to court when they don’t pay it. Then take them to NCAT and have the main culrpits removed from the committee by an order of the tribunal.
You are reading the wrong parts of the law and trying to make them something they aren’t. You could take your arguments to NCAT and try to get them to rule on it. But you will lose – and not because they are biased, but because you are trying to make the law do something it was never intended to do.
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I agree with Scottie. There is nothing in the Act, and specifically the parts cited by “stressed” to prevent bonds being charged, and just because the Act doesn’t specifically allow it, doesn’t mean it isn’t allowed.
The only obstacle would be if the by-law permitting bonds was “harsh, unconscionable or oppressive”. So there is a “reasonableness” test that can be applied.
On a broader note, conflating disparate areas of the Act in an effort to support a quasi-legalistic argument – or bush lawyerism, for want of a better term – is frowned upon in this forum.
I know it can be fun exploring legal loopholes, but strata is confusing enough without people plucking bits of the Act out of the air, then presenting an arcane opinion as irrefutable fact “supported” by references that are, in fact, largely irrelevant.
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Yes, a “please explain” letter to the strata manager, asking why specific problems have arisen and what he intends to do about it would open up the issue for discussion with the committee with a view to further action. I think business people talk about Key Performance Indicators and that’s what you should be aiming for.
But don’t be surprised if he comes back and say it will cost you more.
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