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Interestingly, it is not illegal to take pictures of people who are in their private property provided you are in a public space and the subjects of the photographs are not engaged in an activity for which they might reasonably expect privacy (like bathing, dressing, intimacy etc etc).
However, if you are on their private property when doing it, it’s trespass.
As for taking pictures of people on private property from common property, my guess (and it’s only a guess) is that you’d need the permission of the owners corp, as common property is not a public space. But then the OC would have to be the ones who complained if you did.
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First, a quick clarification: although I have referred to this as a High Court case, it was in fact a Supreme Court case although leave to appeal was denied in the High Court.
The case was Immer (No 155) P/L v Houghton and Ors [1996] NSWSC 427 (13 September 1996) and, if you have a couple of hours to spare, you can click on that link to read a full transcript.
In it, the majority lot holders in a strata scheme had extended their units into the roof space and had used their votes at a general meeting to award the body corporate $1 in compensation on the grounds that the common property was unusable and therefore had no value.
The other owners claimed this was a fraud on the minority and the judge basically agreed.
Right at the end of the (very long) transcript the judge assesses the compensation based on the difference between the value of the units before the alteration and after the alteration, minus the costs of the improvements.
This has become the standard formula for assessing the MINIMUM amount required for the sale of common property. The purchaser can, of course, pay more to persuade a reluctant committee. They can’t, however, use it to force the owners Corporation to sell.
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@Silly Cow said:
Surely a judgment debtor can wind up the scheme?If only there was a lawyer reading this who could give a definitive answer!
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The problem with the non-imposition of fines was a glitch in the wording of the law which meant that while NCAT could impose fines for breaches of by-laws, they couldn’t do so for the failure to pay the fines, or for failure to obey NCAT orders (if I recall correctly). That meant all miscreants had to do to avoid fines was to ignore them. Anyway, I think that has now been fixed.
As far as paying fines to the Owners Corp, I recall a section of the Act that established that principle but I’m damned if I can find it.
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I’ve never heard of a strata plan being wound up by a compulsorily appointed strata manager (although I’m sure some have occasionally wished they could).
The manager replaces the owners corporation in terms of managing the strata scheme. He or she doesn’t replace the strata scheme as its owners and only owners can wind up a strata plan.
The scenario of imposing punitively high special levies that force everyone to sell could be dealt with by an application to NCAT. However, if those levies were essential to keep the scheme above water, presumably because of years of neglect of both the building and its sinking fund, then they could and would be applied.
That’s when the owners might ask the strata manager if they could sell the block to a friendly developer.
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It’s ironic, isn’t it, that someone who claims not to know strata law can always find a loophole to their advantage.
But it’s true, the law requires that every item that requires a special resolution vote must say so on the agenda.
Also, every special resolution vote must be conducted as a poll vote, so be careful you don’t trip up over that one too.
It strikes me that you might get together with other apartment owners corporations in your town and share the cost of a decent strata manager from the city who could keep you all on track with these things by phone and email and maybe visit once every three months.
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The process is to apply for mediation, which is an obligatory prerequisite before you take them to the Tribunal seeking orders under section 132.2 compelling them to fulfil their obligations.
Often the very fact that you are determined to take the next step may be enough to galvanise these recalcitrants.
You’ll find a mediation application form HERE.
By the way, the logic in this case is quite simple. The OC raised the level of the floor to undertake work that was for everyone’s benefit. You have paid your share of having that work done (even though it seems it is of little direct benefit to you).
To make the work compliant with building regs, they have had to raise one section of the balustrade. That means their work has made your outlook uneven and ugly. Their legal and moral obligation is to fix it.
By the way, if they choose to fight this at NCAT, you can ask that all costs be awarded against the OC in a way that means you don’t have to pay a share of the special levy that they will be required to raise.
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You’ll find recent exchanges that cover exactly your issues, by clicking HERE
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@KAlice said:
Would those ’tile cases’ be available via NCAT, if I need to reference them?Sorry – I had a quick look – which is hard as all those cases on Austlii are fascinatiing, if irrelevant – and couldn’t find anything.
However, I think the section of the Act I quoted is all the ammunition you need. You could do a search here for “tiles” but unfortunately, even if you do find something relevant, people often come here for advice but don’t return to tell us the outcome.
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This reminds me of occasions where OCs have dug up a bathroom or kitchen floor and tried to replace the broken or missing tiles with “near as” when identical tiles weren’t available (they never are). If I recollect correctly, they usually end up having to re-tile the whole area.
The significant section of the law is 106 (below) which sets out the Owners Corporation’s responsibility to maintain and repair common property.
Section 106.3 allows the OC to decide by special resolution not to repair or replace common property, provided “its decision will not … detract from the appearance of any property in the strata scheme.”
I think you could “take that to the bank”, as they say. Obviously, their decision not to line up the glass affects the look of the property so that’s a decision they are not entitled to make, whether by a simple majority or even a special resolution.
If they are as reasonable as you say, just show them the law and leave them to do the right thing.
106 Duty of owners corporation to maintain and repair property(1) 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.
(2) 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.
(3) This section does not apply to a particular item of property if the owners corporation determines by special resolution that:
(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.
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Sir Humphrey’s advice is spot on but I would add that you should also add a motion to rescind all the by-laws that your feel are unfair – or oppressive, discriminatory or unconscionable, to use the language in the Act.
That way the Tribunal can see that you don’t just want the model by-laws, you want to be unshackled from the pro-developer ones.
Again I think consulting a lawyer is a good move – your developer is a bully and you sound like you need someone to fight your corner.
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Once the special levy is passed then that is a cost against the lots. If the owner sells before the special levy is voted on, then it’s up to their conveyancer to find this out from the search of strata committee minutes.
If the special levy is agreed on before they sell, then this would show up on the Section 184 sales information certificate that the Owners Corp is obliged to provide to prospective purchasers (You can find Section 184 here).
This is an incredibly detailed document that shows, among other things, future liabilities and unpaid levies due on the lot. It’s then up to the purchaser to decide whether or not to reduce the purchase price by that amount.
Either way, the current owners can’t escape their responsibilities. Personally, I would be encouraging them to sell up and go, ASAP. The “can’t pay – won’t pay” brigade just don’t get that responsibility goes hand in hand with the savings you get from living in strata and they really should be living in houses.
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@BONNIE L said:
Hi, If I have missed something in the above, apologies. It’s a question on what the actual fines are attached to, departing tenants, it’s thought, who recently left behind some of their heavy bulky stuff on the common property. Any tip would be a great help please. Thank you.Not sure I understand the question but if tenants have flown the coop and left behind any kind of rubbish, you would give the landlord a reasonable opportunity to remove the detritus at their expense (five days) then charge them for the cost of the clean-up if they don’t do anything.
Also, under Section 125 of the NSW Strata Schemes Management Act, and sections 32 and 33 of the Regulations (below), the Owners corporation can give notice of disposal of abandoned goods by sale, donation or dumping.
There is a procedure for disposing of abandoned goods that are just rubbish and a slightly different one for goods that have some value.
In the former case you can just dump them, in the latter you have to put a notice on them saying they will be removed after five days. That could then be done by sale (and you’d retain the cost of the sale) or by donation to charity. Bikes are very commonly left behind and soon turn bicycle stores into dumps. But they are also potentially suitable for sale or donation to charity.
This is what the Strata Regs say:
32 Disposal of abandoned goods: section 125 of Act(1) This clause applies to goods left on common property (other than motor vehicles and things permitted by the owners corporation to remain on common property).
(2) The owners corporation may dispose of goods left on common property if:
(a) a disposal notice has been placed on or near the goods and the goods have not been removed from the common property within the period specified in the disposal notice, or
(b) they are perishable goods, or
(c) they consist only of rubbish.(3) A disposal notice must:
(a) not be less than the size of an A4 piece of paper, and
(b) be placed in a position or be in a material so that the contents of the notice are not likely to be detrimentally affected by weather, and
(c) describe the goods and state the date and time the notice was issued, and
(d) state that the goods will be disposed of if they are not removed from the common property before the date and time specified in the notice (being not earlier than 5 days after the notice was placed on or near the goods), and
(e) specify contact details for a member of the strata committee, the strata managing agent or a delegate of the owners corporation in relation to the notice.(4) If the goods are so placed that they block an entrance or exit, the owners corporation may move the goods to another place on the common property before placing a disposal notice on or near the goods, and for that purpose the owners corporation is taken to be the owner of the goods.
(5) The owners corporation may dispose of the goods by selling them or in any other lawful manner and for that purpose is taken to be the owner of the goods.
(6) A purchaser of goods sold by an owners corporation in accordance with this clause acquires a good title to the goods freed and discharged of any interest of any person who would otherwise have an interest in the goods.
(7) The proceeds of a sale of goods under this clause are to be paid to the administrative fund of the owners corporation.
(8) The owners corporation must make a record of goods sold under this clause and keep the record for a period of not less than 12 months after the disposal.
(9) The record must contain the following particulars:
(a) a description of the goods,
(b) the date of the sale,
(c) the name and address of the purchaser,
(d) if sold by auction, the address of the principal place of business of the auctioneer.33 Tribunal may order payment of proceeds of disposal to owner
The Tribunal may, on application by the owner of goods sold by an owners corporation to another person under clause 32, order that the owners corporation pay to the owner of the goods the proceeds of the sale, less the reasonable costs incurred by the owners corporation in selling the goods.SSMA 125 Disposal of abandoned goods on common property
The regulations may make provision for or with respect to the following matters:
(a) conferring power on an owners corporation to store or dispose of, or authorise
the disposal of, goods left on common property,
(b) notices to owners and other persons as to disposal or proposed disposal of
goods by an owners corporation,
(c) the passing of title to any goods on disposal by an owners corporation,
(d) the payment of the proceeds of disposal of goods by an owners corporation,
(e) conferring jurisdiction on the Tribunal to make directions and orders relating
to the disposal of goods, including orders for the payment of compensation and
as to the payment of the costs of disposing of goods.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.
@lefty said:
So which takes [precedence]? The registered strata plan held by LAND and PROPERTY and signed off by council or the DA held by council showing something different.From what I can gather, the DA and the strata plan are not in conflict One says common property, the other says visitor parking(?). So they are common property visitor parking spots.
Do our bylaws govern what is contained in the registered strata plan only or can can a violation of a parking bylaw be referred to as a breach of councils DA. And therefore be referred to council?
By-laws can’t supersede superior laws and Council planning laws are superior. Your DA was granted on the basis that those spaces were for visitors, and until Council says otherwise, that’s what they are for. If your by-laws don’t specifically reference visitor parking then you need to amend the written permission to exclude visitor parking.
For example , if an owner had written permission to park occasionally on common property and they parked in a marked visitors space , could they argue they were not in breach of the visitor parking bylaw as they had permission to park on common property as represented in the strata plan?
No. You can’t legally give them permission to park in visitor spaces because they aren’t visitors and that would be in breach of your DA.
This is really a lot simpler than you seem to think. If what you say is true, then the car spaces are for visitors and permission to park on common property doesn’t change that. There may be another area of common property where they could park but Visitor Parking is not it.
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A friend of mine has recently LEASED an area of common property, unusable by any other owners, for ten or so years. This has allowed her to expand her ground floor terrace into a fenced garden, and she has responsibility for the maintenance of the patch.
I think this is the best way to go as it provides some income to the scheme while retaining a level of control over what the area can be used for and not used for (specified in the lease).
For instance, you could specify that it may be fenced off for a barbecue area but not used as an extra car space.
Just make sure fences etc are the responsibility of the owner and will be removed at the end of the (generous) lease period and it saves you all the hassle of redistributing unit entitlements and all that jazz.
You could even get agreement in principle from the committee. Just set a reasonable fee and everyone will be happy.
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