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@Datolite said:
… does that website stand for Victoria also or just NSW?Strata law and tenancy laws are very different in different states. For Victorian tenants rights go to tuv.org.au. For landlord responsibilities go to Consumer Affairs.
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First off, I advise any tenants and, indeed, landlords to go to the Tenants Union website (tenants.org.au) where you will find a stack of fact sheets covering both tenants and landlords obligations. You might want to have a look at this one which is about locks and security.
Regarding the fly-screen, I suspect you might need to install that yourself and then make sure any damage to the window is repaired before you leave. Have a look at this Factsheet from Fair Trading about the best way to proceed.
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@Lady Penelope said:
Miranda – Are the other two committee members valid members? Do both the boyfriend and the girlfriend own separate Lots in your building?Excellent point. Section 31 (4) and (5) of the Act clearly bans co-owners from being on the committee at the same time unless they own more than one unit.
31 Persons who are eligible to be appointed or elected to strata committee(1) The following persons are eligible for appointment or election to the strata committee of an owners corporation:
(4) Only one co-owner (including a company nominee of a co-owner) of the same lot may be a member of a strata committee at the same time, except as provided by subsection (5).
(5) A person who is an owner of more than one lot in the strata scheme may nominate one person for election as a member of the strata committee for each lot for which the person is an owner.
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Just to be clear – a mediation is not a ruling or an adjudication. It is an attempt to reach agreement between two parties on a way forward that avoids further strife or litigation.
My first question is, if the committee has agreed to fix the bathroom, what exactly are you seeking from the mediation?
The committee can send anyone they want … or no one. However, as the litigant, you must attend as you require an attempt at mediation as a prerequisite to taking the case to NCAT.
Yes you can take along anyone you want for support but expect to be asked to speak for yourself, if at all possible.
Things to bear in mind are that if you reach an agreement at the mediation, you want something in writing from them that includes a deadline. If they fil to abide by that, you can then pursue the issue through NCAT.
By the way, for anyone else who has a problem with their committee delaying fixing common property, the committee’s decision not to fix the membrane because it wasn’t an emergency was entirely bogus. An owners corporation as represented by the strata committee has a responsibility to fix common property and they don’t get to choose whether or not there’s a good enough reason for doing it.
In a similar situation, I wouldn’t get into arguments about who got quotes for this or that or any of the rest of it.
I would just say over and over until they were sick of hearing it: “Under Section 106 of the Strata Schemes Management Act 2015, an owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation. Also an owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.”
Just for occasional variety, I might throw in that in the 2006 decision of Seiwa Australia Pty Ltd v Owners Strata Plan 35042, His Honour Justice Brereton explained:“That duty is not one to use reasonable care to maintain and keep in good repair the common property, nor one to use best endeavours to do so, nor one to take reasonable steps to do so, but a strict duty to maintain and keep in repair.”
For further ammunition, consider quoting this, which is basic strata law but is summarised elegantly here in the Turnbull Bowles lawyers website:
When it comes to undertaking maintenance and repairs, the Owners Corporation must consider the sufficiency of the intended scope of work and whether it will suffice to meet the duty which the legislation imposes. The Owners Corporation must focus on the key phrases “maintain and keep” in respect of the common property and “renew and replace” in respect of any fixtures or fittings comprised in the common property.
In addition to the decision in Seiwa referred to above, there is ample case law to support the proposition that the Owners Corporation cannot adopt a watered down approach or adopt a lesser scope of works, if to do so, would mean that the common property is not being properly maintained and kept in a state of good and serviceable repair. The Owners Corporation must replace like with like.
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I don’t think there is a government cash incentive (although I may be wrong) because switching to LED lighting is going to save you money anyway. Surely that’s incentive enough, even without the social benefits of reducing carbon emissions.
Strata committees often confuse the idea that doing things that are environmentally responsible must come at a cost. Switching to LED lights and motion sensors does involve a capital cost but that is paid off within two or three years and then becomes a major ongoing saving.
Have a look at the Green Strata website and at this government fact sheet which is mostly directed towards commercial properties but applies to strata schemes just the same.
If your strata committee would like to make the changes but doesn’t have the money, look at getting a loan from someone like our sponsors Lannock.
Finally, if you are in City of Sydney your Owners Corp may be able to apply for a free audit of your energy costs which will give you a clear idea of where and how you can make savings under. Unfortunately you have just missed this year’s application for the Smart Green Apartment intake, but there’s always next year,
If you live elsewhere, your local council might have a similar program. For instance, Willoughby Council is very active in this area, and yours may be too.
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@Sanctuary said:
Legal advise is to have the RAN enforced, however the committee (Caretakers) refuse to accept this and reject all requests to have the solicitors address the RAN, The RAN will never raise its head again when the complete committee is controlled (As stated by the current four committee members).
What is the RAN? And how would it be enforced?
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This is a perfect example of why the legalised corruption of caretaker management agreements in Queensland is just wrong.
But that’s no comfort to you. However if you have proof that even half of what you alleges – and I mean evidence that would stand up in court like emails or statutory declarations rather than rumour and gossip – you have a chance to do something about it.
If so, the first thing I would do is to write to all your fellow owners and tell them how much they are losing in the value of their properties and how much more they could be getting in rent by having their building properly managed. If you can do this without personally defaming the caretaker, the more effective it will be.
For instance, you could say that despite this amount being paid for maintenance only that amount’s worth is actually being done, according to industry professionals.
And despite similar properties in your area being sold and rented for those figures, units in your building are only attracting these amounts.
This will make the majority of investors think and ask questions – because finance is the basis for their relationship with the building.
That is very different from writing an email that says MR X is a liar and a fraud who is ripping you off – then you are asking people to take sides and most will go with the status quo, rather than rock the boat.
If people can see they are being cheated, they can then make their own decision about why this is happening.
Consider going to the media. You (and your supporters) will have to agree to be named, quoted, photographed and interviewed, but that might actually be a protection from further abuse rather than a trigger for more.
Finally, and most importantly, contact the Unit Owners Association of Queensland (UOAQ) who will know about dozens of situations like this and be able to advise you on the best way forward.
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I asked our sponsors CHU insurance for their take on this and their reply is below, but first they cautioned that each claim is assessed on its own merits and the circumstances often vary.
You also need to factor in the definitions under the respective policy, which again may vary between companies. The relevant strata legislation in each state and territory may also affect the outcome.
The response below is based on current CHU policy.
CHU says:As you point out, a shower screen is not Common Property (Common Area Contents) as the area is part of the lot. However, under the CHU Residential Strata Insurance Plan, the definition of a building includes fixtures and structural improvements within a lot, such as shower screens.Repairs and maintenance of fixtures within the lot is the responsibility of the lot owner. For the insurance policy to respond to such a claim, there would need to be a sudden and identifiable event [such as an accident] that has caused damage.Therefore, depending on the circumstances around how damage to the shower screen has occurred, there may be a valid claim.CHU recently produced a video on “What is Strata Insurance” which can be found on our website. This may be useful for your members.On the question of whether individual owners can claim against strata insurance themselves without going through their strata committee, the definition of You, Your and Yours within the CHU Residential Strata Plan in respect of policies 1, 8 and 10, provides some coverage direct to Lot Owners within both the Additional and Special Benefits.We have a protocol in place to ensure the Strata Committee are aware (either directly or via the Broker or Strata Manager) of all claims where there is a direct lodgement from a lot owner. However, that relies on us having the correct contact details on the policy record.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.
@Miranda said:
So if/when i resign , though I’ll remain on the committee, and if no one else wants the position, how does anything get done? I would gladly appoint our managers who are excellent to take care of things but I don’t see it happening.I think in those circumstances, the position of chair defaults to the strata manager (if you have one). They can also serve as secretary or treasurer until such times as an owner is elected to one of those offices.
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The strata company? Which state are you in? Or do you mean the strata managers? The information would be helpful.
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A couple of years ago I asked a fire chief what they would do if there was a fire in a flat and there was no one with a key to let them in.
“Then we’d use the big red key with the long handle,” he said.
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@JonH said:
I am going to present my own case and don’t want to involve lawyers.Sir Humphrey is right, of course, but there is so much detail and technical matter involved in this that you might want to talk to one of the growing number of Strata Consultants that have sprung up recently.
These are people with strata experience and training but who are neither practising strata managers nor lawyers (and charge accordingly).
Without making any particular recommendation or endorsement, we are aware of Strata Answers and Nick Penny of Intensive Care Strata Solutions on NickP@Intensive-Care.com.au. Please mention that you got the contact details here on Flat Chat. These are good people and they may be able to help for a modest fee.
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@billy said:
Thanks for this information but just to clarify, what is the definition of “original”.In this case, “original” would mean the wall when the strata scheme was created.
The point Kaindub is making is that if the owner has changed the tiles on the wall, for instance, then they are liable and if they haven’t, then it’s an owners corp issue.
However, you need to look at it the other way round. The owners corp needs to get it fixed – that is their responsibility, ultimately. It’s only as a secondary issue that they need to establish who’s responsible and bill the landlord for the repairs if there is evidence that it’s his fault, e.g. because of renovations that they might have done.
This scenario offers limitless opportunities for faffing around pointing fingers and getting nothing done. Demand in writing that the OC takes action and if they don’t do anything within two months (less if you can show that you have already made a complaint), start proceedings at NCAT as described above.
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@dan said:
Following on from my email above the strata manager has responded with – “This is not a misuse of funds as the shower screen is covered under the strata insurance policy and we are in the process of making a claim to the insurance company”.… has the Strata Manager made a mistake and how do we get it resolved?
It may not be a misuse of funds but it’s almost certainly a dubious insurance claim.
Regardless of what insurance companies normally cover as part of common property insurance, this is no longer common property – as per the terms of the special resolution by-law. The secretary is taking advantage of their position and the insurers lack of awareness of the SR by-law to get a freebie.
Will this cost the owners corporation anything? Probably not.
Is it morally dubious? Almost certainly.
What should you do? You could do nothing but take note of the secretary and strata managers’ “flexibility” when it comes to such issues.
Or you could email the insurance company, tell them, send them a copy of the SR by-law and leave them to decide whether or not they want to pay.
What you probably shouldn’t do is let this take up any of your time or energy. Small war, not many dead, as the saying goes.
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