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Regarding failure to allow access, Section 122 of the Act allows the Owners Corp to apply to the Tribunal for fines to be imposed. Those fines would normally be paid to the OC, covering the call-out fee, but the threat of them might motivate the owner to allow access.
122 Power of owners corporation to enter property in order to carry out work
(1) An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel of the scheme for the purpose of carrying out the following work:
(a) work required or authorised to be carried out by the owners corporation in accordance with this Act (including work relating to window safety devices and rectification work carried out under Part 11),
(b) work required to be carried out by the owners corporation by a notice given to it by a public authority,
(c) work required or authorised to be carried out by the owners corporation by an order under this Act.(5) A person must not obstruct or hinder an owners corporation in the exercise of its functions under this section.
Maximum penalty: 5 penalty units ($550)And then there’s this:
123 Access for fire safety inspections
(1) A person authorised to carry out an inspection under the Environmental Planning and Assessment Act 1979 of a building or premises that is part of a strata scheme for purposes relating to fire safety may give a written notice to the owners corporation requiring the owners corporation to ensure that access is provided, within a period or at a time specified in the notice, to the common property of the strata scheme and, if so specified, some or all of the lots in the strata scheme.
(2) An owners corporation must comply with a requirement of a notice given to the owners corporation under this section. Maximum penalty: 20 penalty units. ($2,200)
(3) It is a defence to a prosecution for an offence against this section consisting of a failure to ensure that access is provided to a lot in a strata scheme if the owners corporation establishes that the owner or occupier of the lot refused to allow the access or could not be contacted by the owners corporation.If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
There is no legal requirement to either prepare a professionally assessed capital works fund (formerly the sinking fund) or to strictly finance the estimates that are prepared. That’s why so many buildings discover they have a shortfall in their finances when things start to go wrong.
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Andy said:
Following the above I’m a bit worried our OC might be outside of requirements. A few years ago we voted to charge interest on overdue levies. I need to check but think this is legit.
Not just legit, but obligatory – unless the Owners Corp decides otherwise you must impose a 10 per cent penalty interest charge on overdue levies.
Not sure about the $70 admin fee, though
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My original response to this question was written back in 2015 and these days I am a lot less sure that OCs can have by-laws that appear to impose fines or “costs” on owners. I know that some strata lawyers are advising owners corps to have such by-laws as deterrents, but I seriously doubt if they will stand up if challenged at NCAT.
There are provisions in strata law for NCAT to award costs and I think that is the way to go. You could howver include in your by-laws that the OC will pursue the matter of costs as vigorously as possible at NCAT.
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You can’t.
All you can do is get a list of competitive tenders that show the SM’s are inflated, and try to find other buildings where the SM has done the same thing.
Then you can show a pattern of misuse that you can take to NCAT for ask for the removal of the SM.
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Not sure about how things work in WA but elsewhere you might find that it makes no difference unless someone is
“breached” under the by-laws and challenges the complaint on the grounds that the by-law wasn’t validly passed.You could fix that later with another general meeting held specifically to endorse the by-laws agreed upon at the AGM. However the current law and future laws say that decisions made at a meeting where there was accidental failure to give proper notice, still stand. I think most authorities would accept that missing by a day was accidental.
Schedule 1, Section 11 (5) of the WA Strata Titles Act 1985 says this:
… accidental omission to give the notice to any proprietor or to any registered first mortgagee or non-receipt of the notice by any proprietor or by any registered first mortgagee does not invalidate any proceedings at any such [general] meeting.
Section 129 (3) of the new WA strata act says this:
Accidental omission to give notice of a general meeting to the owner or first mortgagee of a lot or non-receipt of the notice by the owner or first mortgagee of a lot does not invalidate any proceedings at the meeting.
By the way, the new Act has been passed but not proclaimed as yet, as they are waiting for the supporting regulations to be approved. This is scheduled to happen in the third quarter of this year. So it’s not law but it does indicate where the law is going.
In summary, it would be a brave and possibly foolish owner who decided to ignore the decisions made at the meeting because the notice was a day overdue.
You can read all about WA’s impending strata reforms HERE.
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You are opening a can of worms here (or a bag of cats) so you are right to be cautious. If you want to maintain your (almost) pet-free status, you could modify your by-laws to say that genuine assistance animals must be restricted to one per unit and must be approved under the terms of the Local Government Act (see this advice fact sheet) and that it must not be allowed to roam on common property on its own.
If you are taking this as an opportunity to modernise your pet laws (or at least discuss the issue) a reasonable restriction is two pets per unit. Why two? Dogs, especially, and cats are social animals and they benefit from each others company, and are therefore less likely to be disruptive when their owners are out at work.
I heard recently about a dog that was in danger of being evicted from a unit block because of its barking when left alone – until its owners brought in a kitten for company.
If you are considering bringing pets into your block, remember that there may be owners and tenants who moved there because they didn’t want to be around animals.
But you can assuage a lot of concern by reminding people that even when animals have been allowed, they can be removed if they prove to be disruptive or even present a health concern for residents.
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This reminds me of friends who moved into a new upmarket block of flats and found that all three other front doors in their lift lobby had shoes outside.
Two of them were occupied by SE Asian residents (it’s polite to take your shoes off when you enter a home) and the other was downsizing farmers (muddy boots are always kicked off at the back door). So yes there is a cultural component.
My friends invoked fire safety issues as their way of clearing the corridors. Personally, I think it makes a place more homely to feel that people are relaxed about leaving their shoes outside their front doors. As long as it isn’t every pair of shoes that they own!
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As Lady P rightly points out, these are not charges, they are de facto fines and as such will probably not stand up to scrutiny in NCAT.
It seems some lawyers are encouraging strata managers and strata committees to pass these by-laws, despite knowing full well that they are of dubious legality and probably unenforceable.
Why do they do it? Because the majority of strata residents – owners and renters – have no idea of their rights and may be scared into behaving more considerately.
So is that such a bad thing if it makes people better behaved? Bad by-laws eventually encourage bad behaviour because their flaws undermine the whole system. Lose once at NCAT and any future deterrent is diluted.
Have a look at this story where an owner was told by an NCAT Member that her scheme’s “costs” by-law wasn’t worth the paper it was written on.
You can’t charge people for a service they didn’t require or agree to. And you can’t say that an allegation of a breach of by-laws can be charged back to the alleged culprit (especially if there is a question over their culpability).
NCAT has the capacity to award costs (although traditionally they don’t). It’s up to the owners corp to make a strong case for fines and costs and that should be deterrent enough. But rest assured any claim for costs will be undermined if the scheme has a dodgy by-law in place that tries to award the strata scheme the same powers as the Tribunal.
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As an owner you are entitled to view any documents that pertain to the owners corporation. Even if the result of litigation between the strata committee and any other party have been deemed private and confidential, as an owner, you are allowed to view them. In extreme cases like that, the strata manager might only allow you to see such documents when you have signed a letter saying you won’t relay their contents to anyone else, but you are still allowed to see them. Why? Because you have shared liability so you are entitled to see what you are liable for.
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The in most schemes, units’ front doors are common property. The upkeep of their exterior surfaces is therefore an owners corporation responsibility. Unless there are specific by-laws passing that responsibility to the lot owners, then the OC should be looking after them. However, if the owners were allowed to install their own doors on the condition that they maintained them, then they should pay.
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Agree with Sir Humphrey. Most strata committees will use their official stationary responsibly but if it is being misused then you need to adopt a set of rules (there are no relevant laws or codes of conduct in NSW).
The committee can agree to restrict its use to official communications with authorities, or approved communications with residents, following agreement at committee. That should dial it down a little.
The problem may be, however, an over-zealous secretary who could resent being reined in. That’s a whole other issue that may have to be handled diplomatically, especially if there isn’t anyone else prepared to take over the role.
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For the unitiniated, Section 141(4) says this:
A notification [of new by-laws] cannot be lodged in the Registrar-General’s office more than 6 months after the passing of the resolution to make the by-law.
So, on the face of it, those by-laws would appear to be invalid. But what does this actually mean?
In real terms, it means that anyone who is sent a Notice To Comply with one of these by-laws can ignore it or reply that the by-law was invalid so the breach can’t exist. Chances of that happening in world where a lot of apartment residents think by-laws are optional? Very low.
The smart thing for your strata scheme to do would be to re-table the by-laws at the next AGM and in the meantime pretend that they are valid on the basis that the kind of people who wilfully breach by-laws won’t know the difference.
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Why do you need to know?
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