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The simple answer is not to paint it. Let the owner chase you through Fair Trading and NCAT. The OC only needs to paint what needs painting.
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First of all, there are provisions under Section 87 of the Act for the tribunal (NCAT) to vary contributions (levies) on application.
You could have a clause included in your special resolution that you would not be liable to contribute any future special levies specifically for the repair and maintenance of common property doors and windows, subject to the approval of NCAT under section 87. It would then be up to you or subsequent owners of your apartment to apply for the orders on that basis.
You may however still have issues if, as they should, the owners corp contributes regularly to the maintenance fund and uses some of that money to fix the windows and doors. You might then ask for future levies to be adjusted until your contribution has been exhausted – but that might just be too complicated to fly at NCAT.
But in summary, the Owners Corp can’t just agree to waive contributions, even if they want to – it has to go through NCAT.
87 Orders varying contributions or payment methods
(1) The Tribunal may, on application, make either or both of the following orders if the Tribunal considers that any amount levied or proposed to be levied by way of contributions is inadequate or excessive or that the manner of payment of contributions is unreasonable:
(a) an order for payment of contributions of a different amount,
(b) an order for payment of contributions in a different manner.
(2) An application for an order may be made by the lessor of a leasehold strata scheme, an owners corporation, an owner or a mortgagee in possession.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 are a few ways you could present this. One would be to present a motion that the Owners Corporation agrees to a specific action for reasons given in an attachment.
Or you could a motion of censure, with accompanying material explaining why you think committee members should be required to explain their actions.
Another would be a “please explain” – which is procedurally trickier but doesn’t have the negative implications of a censure motion. This unconventional ploy might only result in the chair ruling it out of order.
Normally, you would place a motion on the agenda that allowed you to open the topic for discussion and you’d make your points at the meeting.
Given that you will be away, your most effective tactic would be to have a proxy raise the issues – and that could even be a strata lawyer or other spokesperson hired to attend on your behalf.
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I’m hoping Sir Humphrey will step in here, being our resident expert on ACT strata.
Regarding the definition of “visitors”, in the absence of anything in the strata Act, you can create these definitions in your by-laws.
You could, for instance, state that a visitor’s car can’t park for more than a set number of hours during the day, and if parking overnight, may not park before a certain time and must be gone by a certain in the morning.
I was jumped on for suggesting a model that was quite restrictive in another post, but the point is, this is a decision for the community to make based on your own collective needs.
If your residents need visitor parking to be turned over every couple of hours, then you’d set your restrictions to suit. The same would apply to overnight guests, with the proviso of “not without written permission” to all restrictions, to allow for special cases.
On the question of residency, Section 115 of the 2011 ACT Act compels owners to notify the strata committee or managers of changes in occupancy within 14 days of the changes occurring, and to provide a copy of the lease concerned (I think???). Given that a simlar law in NSW is observed mostly in the breach, you could use that to conduct an audit of who is living permanently in the building
You could also in your by-law, define residents, visitors and a third category of “temporary guests” to avoid the issue of your visitor spaces being permanently occupied by the boyfriends, girlfriends or Airbnb guests of your permanent residents.
But simply speaking, create a by-law that defines visitors and when they can and can’t park and then start issuing notices when the by-law is breached.
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Landlords have a legal obligation to notify the OC that they have tenants and who they are, subject to a maximum fine of $550 for failure to do so (see section 258 below).
You could ask the strata committee to undertake an audit of all the lots to reveal which ones are unnotified tenancies and then pursue the landlords.
When the committee refuses, and they will, you seek orders under section 232 at NCAT, requiring them to fulfil their legal obligations by either finding out who has registered or seeking fines for those who haven’t.
You could also just seek mediation at Fair Trading and raise the issue there. Or, as you say, get a friendly owner to do the search for you.
258 Tenancy notice to be given to owners corporation of leases or subleases
(1) If a lot is leased, the lessor must give notice of the lease, in accordance with this section, to the owners corporation not later than 14 days after the commencement of the lease.
Maximum penalty: 5 penalty units.
(2) If a lot is subleased, the sub-lessor must give notice of the sublease, in accordance with this section, to the owners corporation not later than 14 days after the commencement of the sublease.
Maximum penalty: 5 penalty units.
(3) If a lease or sublease of a lot is assigned, the assignor must give notice of the assignment, in accordance with this section, to the owners corporation not later than 14 days after the execution of the assignment.
Maximum penalty: 5 penalty units.
(4) The notice must be in writing and specify:
(a) the name of the tenant and an address for service of the tenant, and
(b) the date of commencement or assignment of the lease or sublease, as the case
requires, and
(c) the name of any agent acting for the owner in respect of the lease or subleaseIf 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.
I was about to say that I didn’t think there would be any but I’ve just been told that there’s one in Sydney’s Rocks that self-manages, albeit using an accountant and strata manager as “consultants”. I should add that over the years it has been one of the city’s more successful strata communities.
How would you find out if there are any others? Contact the Owners Corporation Network (OCN.org) Strata Community Australia (the strata managers umbrella group on stratacommunity.org.au) or try our sponsors stratabox.com who may have encountered a few in their own researches.
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@Sammi said:
So could I propose that I continue to pay the quarterly levy of $900.00 and then a special levy for my share of $25,999.00 over a 3-5 year period (3-5 years is generally the time it takes for ideas/proposed works to become actual works, if at all)No. If you don’t pay the full levy you attract penalty interest and you lose your vote on the strata committee and the Owners Corp.
I think this sound like you need an interim order and you should try to get other owners to come in with you on that so that you can have the levy rise postponed until such times as someone has had a look at the accounts.
In fact, if you applied for an interim order with the same effect as Section 87 (below) that would put the levy hike on hold for up to three months until the accounts could be examined.
87 Orders varying contributions or payment methods(1) The Tribunal may, on application, make either or both of the following orders if the Tribunal considers that any amount levied or proposed to be levied by way of contributions is inadequate or excessive or that the manner of payment of contributions is unreasonable:
(a) an order for payment of contributions of a different amount,
(b) an order for payment of contributions in a different manner.
(2) An application for an order may be made by the lessor of a leasehold strata scheme, an owners corporation, an owner or a mortgagee in possession.
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There is obviously something dodgy going on here – it could be incompetence or it could be that someone with a majority of votes is trying to force owners out so that they can gain control of the building and sell it to a developer. Stacking up legitimate charges for dubious reasons is one way of doing that.
You have a number of options.
1. If you think this is urgent, apply directly to NCAT under Section 231 for an Interim Order requiring the OC to use existing financed for these capital projects.
2. If it’s not so urgent, apply for mediation with a view to pursuing the OC under section 232, seeking orders to resolve a dispute.
3. If you think there are individuals on the strata committee trying to push you out so they can sell the block to a developer, go directly to NCAT for the statutory appointment of a strata manager to take over the running of the building.
You will find more information and links to forms here.
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NCAT is the NSW Civil Adminstration Tribunal and they are the “court” for strata. In most cases, like this, you would go to Fair Trading for meditation first, then go to NCAT for orders.
And no, you may not name the removalists in this forum. We work on the basis of anonymity and that goes across the board.
I suggest you spend a bit of time looking at previous posts – do a few searches – and you’ll get an idea of what we’re about.
And I don’t know why you are even suggesting that you pay half. Between them, the OC and the removalists should be insured. It’s not like you went and damaged the lift yourself.
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@Help_1 said:
Jimmy, not too sure myself Jimmy, How would I find this out ? The by law says Exclusive Use area as a result of the works and owner to repair, maintain and replace the right of the exclusive use where are installed..Those words – “maintain and replace the right of the exclusive use where are installed” – don’t make sense. Is something missing?
But generally speaking, if an owner gets the right to build something and attach it to common property (like a wall) then that wall doesn’t necessarily cease to be common property, although the benefitting owner should be required to maintain and repair the area of common property to which their extension is directly attached.
So the OC may be required to pain the original wall, but not the extension. A sensible solution would be to invite the owner to pay a reasonable amount to have the extension painted at the same time.
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@kaindub said:
Remember that any outstanding amount owed to the OC, whether real or otherwise and not paid by you makes you non financial.I am really not sure if this is the case. If the OC can’t recover damages under the SSMA, then surely it can’t charge for those repairs as a contribution. And the Act specifies that it’s unpaid contributions that render owners “unfinancial”. Relates expenses, such as penalty interest and NCAT authorised fines would, I believe, count as unpaid contributions.
But unproven damage claims?
In any case, the $500 claim seems arbitrary – more like a fine than an expense. The OC should have receipts to show what work was done and how much it cost.
In the first instance they should calm that against their insurance (and you can get NCAT orders compelling them to do so), then they should claim any excess against VLS, who should pass that on to the removalists.
If the removalists refuse to pay, they should be warned that they could end up on a blacklist. But the sensible thing for them to do would be to claim it against their insurance and this shouldn’t cost VLS a cent.
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Your original post and a comprehensive set of replies are here.
The answer depends on what is common property and what has been taken over by the owner under the terms of the by-law.
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My understanding is that, with very few exceptions, you can only vary the payments for maintenance from shares equivalent to the unit entitlements by either an order from NCAT or a Special resolution.
In the absence of any reference to a special resolution by-law, it would seem that your previous arrangement was under “Old Spanish Customs”, as they used to say in the printing trade; that is, an informal arrangement that everyone was happy to go along with.
Assuming the lots 3 and 4 are paying for the lift because they are the only people who use it, then that should come under a special resolution or Common Property Rights By-Law.
However, as reflected in the final paragraph of the proposed by-law, it can only come into force if the benefitting owners agree to it in writing, and can only be changed with their written agreement too. (Which means if there is a previous special resolution by-law, it certainly can’t be changed on the whim of the strata manager.)
Just to complicate matters a little further, is it reasonable to assume that they owners of lots 3 and 4 are the only people to benefit from the maintenance of the lift? Surely there’s an element of the correct management of noise and safety that benefits all owners, regardless of which floor they live on.
I suspect this might be better handled by adjusting all four lots’ Unit Entitlements to reflect the additional facility provided by the lift. This may be a fairer way of sharing the costs, while making decisions about maintenance more logical and equitable too.
I also suspect that this might be beyond the ability of your strata manager. In any case, this by-law would require 75 percent of the unit entitlements voting at a general meeting to be approved. So just turn up and say no until you get a proposal that’s fair.
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The critical issue here is probably “who pays?” rather than “who owns?” and if that’s the case, in a two-unit block the difference between lot property and common property is moot.
Look at this from the point of view of the outcome that you want. The ideal resolution would be to upgrade all the electrics including the powerboard and meters etc for the simple reason that these things get old and worn, and dodgy electrics are dangerous.
But if your neighbour doesn’t want to do that, then you have to ask if the set-up is common property or not. The “Who’s responsible” memorandum doesn’t help much as it refers to fuses and wiring in a meter room, or electrical equipment in a lot and serving only that lot.
Your set-up doesn’t fit either of those descriptions but I’m going to stick my neck out here and say the powerboard, fuses and meters for both lots are common property that just happen to be on your neighbour’s lot. This would be especially so if the meters also fed power to common property lighting.
If not, the simplest thing, as I said, would be to get her to agree to a revamp of both systems and just share the cost. But if she is reluctant, now might be a good time to split the systems, move the meter to your property and just look after your own electrics.
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Thanks for that. I’ll store it away … until I forget it again.
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