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No by-law can be valid when it supersedes a superior law.
Number one, you could argue, turns common property into permanent parking spaces, which would be in violation of your Development Approval, and does not adequately compensate the owners corporation for removal of common property for use by individual owners.
Number two would be invalid because it infringes your legal right to photograph anything on or from public property, or from your private property, subject to specific laws related to behaviour that you would reasonably expect to be private (like bathing or sexual activity). Technically, if you are on public land or your own property the law means you can photograph someone in their home washing their dishes, but not taking a shower. However, the owners corp can restrict behaviour on common property, so it’s all about where you stand when you are taking the pictures.
Like number one, number three also contravenes your DA and does not adequately compensate the owners corporation for removal of common property for use by individual owners.
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Send them a bill for the amount with a reasonable time for them to respond. If they fail to do so, take them to NCAT where, at the time of writing, the Tribunal can award compensation.
I say “at the time of writing” because, according to this report by strata lawyers J S Mueller, this has changed over the years and could change again.
However, if you were the unfortunate test case that forced another backflip at the tribunal, you could always go to your small claims court.
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Is the air-conditioning specific to your apartment or part of common property?
Either way, worn-out air conditioning is generally not covered by insurance and if it’s causing your power board to blow, that may not be either.
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@jd2127 said:
Our strata manager has advised that he cannot proceed further or issue fines to offenders as this can only be done via applying through Tribunal and if the Tribunal is satisfied that there is a breach. However, this has been going on for almost 1.5 years with committee not willing to take it further and expecting results.The strata manager is right. It’s not up to them to pursue this – it’s up to the committee and if they are too timid or ignorant to proceed, nothing will change.
Thus, SM has proposed to register a by-law for our scheme which allows SM/OC to keep a record of all vehicles that may belong to or under control of all residents at our building and charging an administration fee every time a report is received from owners/residents onsite regarding breach of their by-law. i.e., when vehicles are spotted parked in visitor’s or common property.
I would like to know how effective this can be and whether it is legal (lets say this is specially resolved at a GM to register such by-law). Even if OC is successful in registering such by-law, I feel this will make the matter worse and the offender may simply ignore this and may not pay the administration fee decided under this by-law.
Your fears are well-founded. A by-law that imposes what is essentially a fine, trying to by-pass the Tribunal system, is deeply flawed and if I were the rogue parker, I would just ignore it. This kind of by-law is increasingly used to scare people into behaving – but it’s illegal.
Can such administration cost be recovered in a similar way as recovering unpaid levy contribution? With offenders always ready to question the integrity of proof (photos of vehicles) regarding breach, how far can OC go with this resolution?
Garnisheeing levies to pay for dubious “admin” charges is illegal. I think I may know the legal firm that’s advising this and I would advise them to stop. The end may justify the means but a dodgy by-law is bad for everyone.
Issue notices to comply and follow up with applications for penalties at NCAT. That’s what it’s there for. If your committee isn’t prepared to use the systems that exist, they should resign and let someone with some backbone do the job.
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@zerobullying said:
… can we develop a list of NAME & SHAME those who collude, and do wrong by Owners?You are going to accuse lawyers and tribunal members of colluding against you? Hope you have plenty of money to cover the defamation suits.
As Confucious said, when seeking revenge, remember to dig two graves.
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Generally, the Owners Corp is responsible for repairs to damage inflicted on Lot Property by work carried out to repair common property. In the scenario you have described, the OC should pay for the paint job
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This is how I see it (and others may have different opinions). There are two scenarios that could come into play here. The first is a “user-pays” arrangement. where only those who want the balconies pay for them.
Under this method, the Owners Corp is not paying for the new balconies – just four of the five owners who want one. However you would need the support of 75 percent of all the owners voting at a general meeting to pass the by-laws required to get this through.
Now it may be that the other owners could decide they have no dog in this fight so they abstain or at least enough of them support the motion to get it passed.
What happens then is that you have one owner who doesn’t want a balcony and four who do. The question then arises, is is feasible to attach only four balconies?
I find it hard to envisage an economically viable construction method that would allow this to happen but assuming there was a solution, you build four balconies and leave the fifth apartment as is.
However, it may be that the owner of the fifth apartment doesn’t have the money to pay for the construction of their balcony, in which case, you might find a way to allow them to participate without their having to find the money all in one go (a strata loan for the whole project, for instance, or a private arrangement with the other owners).
But bear in mind that the argument that this will enhance the value of their property will not hold water if they have no intention of selling – self-funded retirees are often in this position, desperately trying to avoid increases in spending.
A longer shot would be the Redevelopment option in what we’ve been calling the “forced sale” provisions of the Act, which are explained here. Loosely speaking, you would come up with a plan that gained the support of 75 per cent of all owners in the block to redevelop five apartments by installing balconies.
The plan would be constructed so that the five affected apartments would be the only ones that paid for this. At the end of a lengthy and fairly complex process, the fifth apartment would have the choice of either buying in or selling their apartment at an agreed market value.
Now, apart from the time factor, this process would have to be seen to be scrupulously fair, to the point of generosity, and all the costs, including legal provisions, would have to be borne by the five lots that were having balconies installed.
Considering the hoops to be jumped through and the obstacles to be surmounted, the recalcitrant owners would have plenty of potential for obstructing and delaying the process … but then that could be an expense for them with no gain if, in the end, they were forced to either pay for a balcony or sell out.
The interesting aspect of the Renewal process in the Act is that there is no requirement to show that the improvements are necessary – just that they are desired.
Talk to an experience strata lawyer – if you push ahead with either plan, you are going to need one.
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@newlsie said:
Morning All,Our strata plan has lodged with NCAT for a compulsory strata manager. Surprisingly no one is objecting to this however there is mass confusion as to the role of the Strata Committee and we have received conflicting advice from various sources. The current SC thinks they will still be there. Can you guys please help me with these questions;
* I understand there still must be a SC – yes?
No. There could be a committee but they’d have no power – that has all be passed to the Statutory Strata Manager (SSM) who might talk to the committee on an advisory basis but the power is all with the SSM
* We should have had our AGM in September. Does that mean the current SC continue (that would be terrible because they are the reason we lodged).
Nope. As soon as the SSM is appointed, the committee, to all intents and purposes, ceases to exist.
* Otherwise how is the SC elected?
No SC, so no election.
* Will those people play any part in the process of day to day management?
No
* I understand there will be no meetings for the term of the compulsory management?
Correct.
* How do we get a motion in front of the SM?
Send them a letter or make a phone call. But it can only be a request, not a motion, as there are no meetings.
Any more information you can give me would be appreciated.
A statutory appointment of a strata manager is to take over any or all of the functions of an owners corporation (usually the latter) when they have proved incapable of running the show themselves. Their term is usually a year which usually gets renewed on request. Some will consult with owners to keep them involved, but most just run the show the best they can without any assistance from people who, by definition, have failed.
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Was the CCTV established by by-law? If so, it can only be changed the same way.
If it wasn’t, then I suggest a plebiscite, asking owners where they think cameras should be and who should have access to the images.
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Assuming this is the same person as in these posts, Sir Humphrey is right in thinking they are trying it on.
How about hitting them with a notice to comply, demanding that they repair their property so as not to negatively affect the appearance of the strata scheme?
But, to answer the original question, if the strata plans shows the driveway as part of the lot, then the lot owner has to prove that it isn’t – you don’t have to prove that it is.
Let them make the running on this and don’t spend a cent on legal representation. Just get a surveyor to confirm what it says on the plan.
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You could try to have all costs for future matters allocated to the “serial litigant” on any of the following grounds, from the NCAT website:
a) A party has conducted their case in a way that unnecessarily disadvantages another party
b) A party has been responsible for unreasonably making the case take longer
c) The relative strength of a party’s case or whether the case was hopeless
d) The nature and complexity of the case
e) A party’s case was frivolous, vexatious or misconceived
f) A party has not cooperated with the Tribunal in providing a just, quick and cheap resolution of the real issues in dispute
g) A party has not followed Tribunal orders or directions
h) Any other matter the Tribunal thinks is relevant.However, I wonder if you might be better in future applying to NCAT that each party represent themselves as, by employing highly paid lawyers, the litigant is putting the OC at a disadvantage.
In fact, parties in a dispute at NCAT are supposed to seek leave to have representation which may be allowed under these conditions. That clearly allows the Member to say “no lawyers” – that might even up the playing field a little.
Or, you might warn the owner that you are sick of their bullying and the next time you will seek to have them declared a “vexatious litigant” under these conditions in the Supreme Court. It’s a long shot but it might give them pause when they consider what such an action – successful or not – might do to their reputation among their peers.
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I don’t know about a list but here are their duties in a nutshell:
The Owners Corporation (OC) comprises all owners in a building. You are a member of this whether you want to be or not.
The Strata Committee is elected by the OC at the Annual General Meeting – or at least, by those owners who bother to turn up.
The Building Manager (aka building services manager) in Victoria is often recommended by or is a subsidiary of the Strata Manager . Think of them like a hotel manage. They are hired to look after all the day-to-day stuff in the building, such as hiring tradespeople and dealing with physical and/or social issues. Depending on the size of the building, they are usually exclusive to that block or shared between two or three.
The Strata Manager (or strata managing agent) is an office-based administrator who looks after collecting levies, paying bills and organising meetings of the OC. Both the strata manage and Building manage are hired by the OC and can be dismissed by them.
In many buildings, there is a common misconception, that the Strata manager is at the top of the pyamid and the owners at the bottom. In fact, the owners collectively have the power to direct or dismiss the committee and the manages, so they ultimately have the power.
On the other hand, individual owners sometimes think they can order the building and strata managers to do their bidding, and that is not the case either.
Think of it like an hotel in which you are a shareholder. There is a board of directors (the committee) a CFO (the strata manager) and a general manager.
For more information, have a look at the Consumer Affairs Victoria website
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