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@Rubes said:
I have rented my apartment recently and found out that the contents insurance for landlords mostly only covers (Carpets, Light fittings, blinds etc), and most of them have an exclusion clause for fixtures and fittings (kitchen and bathroom).Therefore I am concluding there is some sort of gap, between the strata building insurance and the contents insurance. Appreciate if you can guide me as to where I go from here.
If you stroll over to the this topic and roll down to post 7, you’ll find an answer.
As for your specific policy, call them up and ask them – you won’t be the first.
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@Toretti said:
Who, in the end, decides authoritatively what is and what is not common property or whether common infrastructure is the responsibility of the owners corporation?The second part of your question is answered by the Strata Schemes Management Act, the Strata Schemes Development Act and the Strata Schemes Regulations – which basically say the Owners Corporation must maintain and repair common property and “any personal property vested in the owners corporation”.
Your strata plan lays out what is and isn’t common property but in the event of a major dispute, I would imagine a case run at either the Supreme Court or even the Land and Evironment Court would give you a definitive answer (at considerable expense)
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Strata law is different from state to state but in Victoria, as in NSW and most other places, the Owners Corporation has a legally enforceable duty to maintain and repair common property (which the ceiling/floor between your flat and the one above almost certainly is). See section 46, below.
Basically, the OC or manager should be investigating whether the problem is in common property or caused by a fault in the lot above.
Once they have established that, they should either repair the common property pipes or insist that the owner upstairs fixes the problem in their lot. The key issue here is that it’s not up to you to pursue the lot owner – this is an Owners Corporation issue and your manager should be dealing with it directly.
The process for pursuing complaints in Victoria is very different from NSW. And with my lack of detailed knowledge in mind, you should definitely talk to someone in Victoria who has experience of this kind of thing, or at the very least call Consumer Affairs Victoria on 1300 55 81 81.
That said, as far as I can see, you need to fill in an official complaints form and attempt mediation before you can go to VCAT (the Tribunal) and seek orders. You’ll find a link to the official complaints process and forms HERE.
Now, having said that, I would be calling the manager and saying, “look, this is your responsibility and I don’t want to cause you any trouble but if I haven’t seen any progress on this within seven days, I’m afraid I have to start the official process and that involves making a complaint to the committee about you.”
If you don’t get the required response, then start the process by filling in the official complaints form with a complaint about the manager, not the other lot owner, for failure to maintain common property as required by section 46 of the Act.
I’m now hoping one of our Victorian Flatchatters will hop in here, put me right if I have said anything wrong and provide more reliable advice.
VICTORIAN OWNERS CORPORATIONS ACT 2006 – SECT 46
Owners corporation to repair and maintain common property
An owners corporation must repair and maintain—
(a) the common property; and
(b) the chattels, fixtures, fittings and services related to the common property or its enjoyment.
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Explain to the strata manager that since this is a common property problem, he or the committee need to take action. This is not something you can do as an individual owner.
However, what you can do is take action against the strata manager or the committee, under Section 232, 1(e) and 2, to make them do their job as required by Section 106 of the Act.
So, if you do go to Fair Trading, it will be as the first step in compelling the Owners Corporation (the committee) to
a) Fix the problem and
b) Pay you compensation
c) Sack the committee
d) Replace the strata manager
Finally, you might suggest the strata manager take a few moments to read the Strata Schemes Management Act and maybe go back to strata manager school because they aren’t doing their job and don’t even seem to know what it is.
Meanwhile tell them you will be sending the committee a bill for the lost rent (which you should do). If they fail to pay, you will raise an action at the small claims court.
And if you really are $16,000 out of pocket, now would be a really good time to call an experienced strata lawyer and ask their advice.
No point in sending us a picture. We won’t be taking any action on your behalf and external pipes could be a design feature for all we know.
Remember my comment about “faffing around”? It’s time for you to take action and it sounds like you need to get someone to help.
If you don’t want to go straight to a lawyer, drop Nick Penny a line on nickp@intensive-care.com.au and direct him to this discussion. He will advise you for a fee but it will be worth it if you get things moving.
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Option B of By-law 9 in the model by-laws (below) clearly anticipates this. But the cost of providing a smoking area for one person may make this prohibitive. This is clearly aimed at schemes where significant numbers of people – possibly from the same ethnic background – find it hard to quit, and can’t smoke inside their homes or on their balconies without bothering neighbours.
Option B
(1) An owner or occupier of a lot, and any invitee of the owner or occupier, must not
smoke tobacco or any other substance on the common property, except:
(a) in an area designated as a smoking area by the owners corporation, or
(b) with the written approval of the owners corporation.
(2) A person who is permitted under this by-law to smoke tobacco or any other substance
on common property must ensure that the smoke does not penetrate to any other lot.
(3) An owner or occupier of a lot must ensure that smoke caused by the smoking of
tobacco or any other substance by the owner or occupier, or any invitee of the owner
or occupier, on the lot does not penetrate to the common property or any other lot.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.
Ventilation is there for a reason and removing it or sealing it up could lead to all sorts of other problems in common property, such as damp, for a start. In any case, as soon as the resident opens her front door, contained fumes will escape into common property.
There is a legal precedent in NSW where tenants in a flat were ordered to stop smoking inside their property becasue all efforts to stop the smoke spreading to other units had failed.
But before you get to that, perhaps you might want to look at strategies the would allow the resident to keep smoking in a place that isn’t going to affect other owners.
The new model by-laws allow Owners Corps to establish a smoking area for residents where they can smoke in peace provided the smoke doesn’t drift into common property or other units.
In any case, before issuing complaints and warnings, how about sitting down with the resident and discussing strategies that might work for all concerned.
But if that fails, strata law identifies smoke from smoking as a nuisance so the door is open to take it further if need be.
Meanwhile, rather than trying to contain the smoke, you could talk to these “air quality engineers” to see if they have any bright ideas.
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@Tal Ren said:
As the transition was happening the PM asked me to ask the maintenance guy to check the pipe.Who or what is the PM?
Anyhow the maintenance guy found a cable tie wrapped around the pipe! The leak stopped but the smell lingers. The PM has said to use essential oils to clear the smell. I have sent her a picture re: the one I will upload here and as a record of this issue for myself.
Picture of what?
The maintenance guy suggested I get a broom and sweep some of the small tiny wood out. Finally, I had to chuck out some items in the basin cupboard due to the smell lingering.
What “small tiny wood”?
Update: maintenance guy saying there was no smell when he was here. PM has not said anything else. Constructive feedback would be appreciated. : )
Is the problem the smell? Are there signs of damp? Is it possible that there’s a dead rodent behind the cupboard? Or is there a drain in the floor that has been allowed to dry out? This is a common source of a gassy smell in a bathroom or, especially, laundry and can be fixed by simply pouring water down the drain.
I’m guessing that PM is a property manager but is she the building’s manager or the rental agent’s.
I don’t know what the significance of the small pieces of wood are and it’s hard to gauge the smell (with or without a picture) when you don’t describe what it’s like or how strong it is.
No offence, but you need to organise your thoughts a bit more and give us a little more description. By the way, we don’t encourage people to post pictures here as they can carry all sorts of nasties hidden in their coding.
Have another go and we’ll try to help.
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Under Section 108 (in part, below) the Owners Corproation may not alter common property without first passing a special resolution, which requires a general meeting and 75 per cent of those voting at the meeting, voting in favour.
Strata committees and strata managers are specifically forbidden by law from making decisions that require special resolutions.
So the procedure you outline above is correct. An Extraordinary general meeting would be held, a motion would be discussed and voted on and the strata manager would follow the instructions agreed upon at the meeting.
For instance, the motion could be in two parts
- This strata scheme agrees that the [identified] tree should be removed.
- This meeting instructs the strata manager to apply to the council for permission to remove the tree referred to in item one.
- Should permission be granted, the strata manager is instructed to obtain three quotes from qualified and licensed contractors to remove the tree.
Now, at this point the best policy may be to let matters take their course and then agree that there will be another general meeting for the owners to decide if they want to proceed, to choose the contractors and to decide how they are going to raise the funds.
However if you have sufficient funds in your sinking fund, you could authorise (at this first meeting) the strata committee to choose a contractor and go ahead as they have already been given permission to remove the tree.
But if you don’t have the funds, you’ll need another general meeting to agree on a special levy.
108 Changes to common property(1) Procedure for authorising changes to common property
An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.
(2) Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.
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A compromise would be to have a lawyer quickly review and subsequent variations on the new by-law (for the renovation that’s already underway) to make sure it’s OK.
It really comes down to finding an experienced strata lawyer who can see the benefit of a longer-term relationship and a good reputation in the strata community.
You really don’t have to start from a blank page every time – but you do need to be mindful of specific tiny differences that might become critical in a dispute.
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Under Section 13 of the Act (below) officer functions or duties can only be delegated to another committee member.
If no one on the committee wants to do it, and there is a suitable candidate among other owners, a member of the committee could resign, creating a vacancy, and the committee can then co-opt the owner to fill the position. Once the crisis is over, the co-opted member can resign and the previous member can be voted back on to the committee.
Also, if the duties are financial, then Section 101 (also below) offers several options:
Firstly under section (c) any can be person authorised by the committee to act jointly with the elected treasurer.
Also under sections (d) and (e) there’s also the opportunity to hire a qualified accountant to do the work.
13 Functions that may only be delegated to member of strata committee or strata managing agent(1) The following functions of an owners corporation, strata committee or officer of an owners corporation may be delegated to or conferred only on a member of the strata committee or a strata managing agent:
(a) the preparation of estimates for the purposes of section 79,
(b) the levying of contributions,
(c) the receiving of, acknowledging of, banking of or accounting for money paid to the owners corporation,
(d) having custody of any money paid to the owners corporation or making payments from any such money,
(e) the taking out of insurance required or permitted by this Act,
(f) the conduct of meetings of the owners corporation and handling of correspondence,
(g) the maintenance of records required to be kept under this Act,
(h) such other functions as may be prescribed by the regulations.
(2) This section is subject to sections 56 and 101.
Note.Section 101 enables some of these functions to be exercised by certain other specified persons.
101 Persons who can exercise functions relating to the finances and accounts of the owners corporationA person must not exercise any of the functions of an owners corporation or the treasurer of an owners corporation relating to the receipt or expenditure of, or accounting for, money of the owners corporation or the keeping of the books of account of the owners corporation unless the person is:
(a) the treasurer of the owners corporation, or
(b) a strata managing agent who is empowered to exercise the function, or
(c) a person with whom the treasurer of the owners corporation is required by a decision of the strata committee to exercise the function jointly, and who is enabling the treasurer to comply with the decision, or
(d) a member of CPA Australia, or a member of the Institute of Chartered Accountants Australia and New Zealand, authorised by the owners corporation to exercise the function, or
(e) a member of the Institute of Public Accountants authorised by the owners corporation to exercise the function, or
(f) during the initial period only—a person authorised by the owners corporation to exercise the function.
Maximum penalty: 5 penalty units.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 nothing to stop you from paying for one by-law and then allowing other owners to use that as the basis for their by-laws. But asking a lawyer to provide you with one that removes their opportunity to charge several times over is like asking turkeys to vote for Christmas.
That said, there are reputable legal firms that will provide a standard by-law for a one-off price. They make their multiple charges by being one of the few around who do that. Just Google “standard strata by-law” and see what pops up.
While we’re here, it’s worth noting that it’s your owners corporation that approves the by-law and no one else. Provided it doesn’t breach strata law or any other law, it can say what you want. If it doesn’t, you don’t pass it.
The valid reason that a lawyer might strongly recommend you have specific by-laws for each application is that there might be significant variations from bathroom to bathroom that are missed by an off-the-peg by-law.
For that reason, your standard by-law should have a set of adaptable inclusions and exclusions, or at least a clause covering all eventualities. After all, the by-law is there to protect all the owners in the building and, most importantly, to legally transfer the upkeep of affected common property to the renovator and any subsequent owners.
As for what to say to XYZ Lawyers to get them to provide what you want, just say “if you won’t do it I will get someone who will”. Neither they nor the strata manager can force you to do otherwise.
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To answer the first question, the Owners Corp needs to fix the door first and start demanding insurance payments and excess payments after, if need be. The front door is common property and there are long established principles of strata law that a) the OC needs to fix common property expeditiously and b) fixing it doesn’t alter who is responsible for paying for the repairs.
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Meddiation is a necessary prerequisite for most cases taken to NCAT, so it’s worth it for that alone. Also, remember the Fair Trading officer is a mediator, not an adjudicator. They may (or may not) be able to advise either side on points of law but their role is not to make a judgement on the case.
Mediation is an attempt to resolve issues without having to resort to the tribunal (NCAT). It is not an opportunity to compromise on the law – although your neighbours and some Fair Trading mediators may act as if that’s the case.
Mediation itself is a fairly low-key procedure. The mediator will try to make you feel as comfortable as possible and you may be invited to go off into a room with the other party to resolve the issue yourselves. You don’t have to do that if you don’t want to.
In your case, the law is quite clear. Residents have to obey the by-laws and Owners Corporations (through their strata committee) have to enforce them.
Parts (a) and (e) and (f) of Section 232 of the Strata Schemes Management Act (2105) cover disputes over “the operation, administration or management of a strata scheme …” and “an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme … or a function conferred or imposed on an owners corporation under any other Act.”
If I were in your shoes, and the other side shaows no sign of conceding any ground, I would simply say that you are only there as the obligatory precursor to taking action under section 232 of the Act at NCAT.
The only compromise you can really accept would be a written undertaking that offenders will be warned not to park on common property and that the strata committee will take all means necessary to penalise offending drivers and, if necessary remove offending vehicle.
Failure to pursue this within the time agreed on the letter (and there should be one stipulated), or refusal to do so, will lead to action at NCAT requiring the strata committee to abide by Section 232, its own by-laws and the scheme’s Development Approval which limits the number of parking spaces.
Regarding section 232, in the second reading of the Act in parliament in 2015, then Minister Victor Dominello made it clear that this section was intended to require strata schemes to abide by their own rules, and not apply them selectively.
There is no compromise in that and you shouldn’t be expected to give ground. The law is on your side.
However, be warned that some Fair Trading mediators think their job is to stop people arguing by getting them to agree to disagree. You don’t have to do that, and you shouldn’t if it doesn’t get you what you want to achieve
Just hope you get a good mediator but be prepared in case you don’t. I have been to a mediation and I ended up explaining the law to the mediator (which went down really well, as I’m sure you can imagine)
If the strata committee doesn’t like the by-laws or the scheme’s development approval, they should change them through the proper channels.
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Cosmo is right. No need to poke the bear in this regard. However, if your floorboards do prove to be a noise nuisance – and that can be adjoining to flats too – those neighbours can still take action, by-law or not, under the ‘peaceful enjoyment’ rules.
That said, I wouldn’t worry about it. Shoes off at the front door will protect your floor and your peace of mind.
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