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@lefty said:
If the owners committee wishes to take action against an owner parking illegally in this spot exactly which bylaw has been violated.
1. Owner parking in a visitors car space or
2. Owner parking on common property without written consent ?Are the spaces designated as visitor parking in the by-laws? Just because they’re common property doesn’t mean they are visitor spots. Some schemes have all their parking designated as common property but owners have exclusive use of their spaces.
Your safest bet would then be option 2 – parking on common property without written consent (if you have that by-law registered).
Also if the wrong bylaw violation was listed on an application to NCAT, would there be problem?
For sure. How can owners defend themselves against a breach notice if they don’t know which by-law they have breached?
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@JohnKen said:
Is it reasonable to expect that these planter boxes be replanted at each lot owners expense?Absolutely. Even if this was a garden which was part of the lot, the owners would be expected to maintain it at their own expense in a manner that was in keeping with the appearance of the building.
The planters are different from the plants that they contain. The Owners Corp might be responsible for maintaining a common property parking spot, but they don’t have to pay to service the car that’s parked there.
Sounds like these owners have been getting a free ride on the gardening front.
And, despite what Puddn said above, unless there is a by-law or section of the strata plan that says the plants in the planters will be maintained at the OC’s expense, the costs of the gardening should be sheeted back to the plant owners.
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@strats all said:
Due to the urgent nature of some of the repairs I think the way to go is to document everything, have the repairs done now by the body corporate and then pursue costs.Sounds like a plan. I think it has been established in law that, in the event of a delay, the Owners Corps’ first priority is to effect repairs then find the person responsible for the damage and get them to pay for it (rather than the other way round).
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What do your other strata committee members think? Do they want to pursue this with the strata manager. If not, your initial beef is with them. This is what the mediation form says:
Owners raising issues involving a strata agent’s management of the scheme need to apply for mediation against the owners corporation.
Assuming a majority of the committee agree, if the strata manager is simply refusing to follow your instructions – or just not doing whatever it is you have told them to do – unless following those instructions would be a breach of the Act or some other law, then they are in breach of their contract.
So what does the strata management contract say about their duties?
If they are in breach, you can apply to NCAT under Section 72 (below) to have the contract terminated. Now, normally in most NCAT actions you would need to go to mediation first. However, this is where it gets complicated. Here’s what it says on the Fair Trading mediation application form:
There is no jurisdiction for an owners corporation to mediate with its strata managing agent – except for seeking to recover its records and other property from the agent upon termination of the agent’s services.
So, in my reading, that would mean you go straight to NCAT. Where on their application form it asks if you have tried mediation and if not, why not, you’d quote that line.
SSMA Section 72 Strata managing agent and building manager agreements may be terminated or varied by Tribunal(1) The Tribunal may, on application by an owners corporation for a strata scheme, make any of the following orders in respect of an agreement for the appointment of a strata managing agent or building manager for the scheme:
(a) an order terminating the agreement,
(b) an order requiring the payment of compensation to a party to the agreement,
(c) an order varying the term, or varying or declaring void any of the conditions, of the agreement,
(d) an order that a party to the agreement take any action or not take any action under the agreement,
(e) an order dismissing the application.
(2) If the Tribunal makes an order terminating the agreement, the Tribunal may also order the strata managing agent or building manager to return to the owners corporation, within the period specified in the order, any documents or other records relating to the strata scheme that are in the possession of the agent or manager.
(3) The Tribunal may make an order under this section on any of the following grounds:
(a) that the strata managing agent or building manager has refused or failed to perform the agreement or has performed it unsatisfactorily,
(b) that charges payable by the owners corporation under the agreement are unfair,
(c) that the strata managing agent has contravened section 58 (2),
(d) that the strata managing agent has failed to disclose commissions or training services (including estimated commissions or value of training services or variations and explanations for variations) in accordance with section 60 or has failed to make the disclosures in good faith,
(e) that the strata managing agent or building manager has failed to disclose an interest under section 71,
(f) that the agreement is, in the circumstances of the case, otherwise harsh, oppressive, unconscionable or unreasonable.
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Have a look at our sponsors Stratabox’s system. It would be the perfect basis for self-management.
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Presumably your action at NCAT is to force them to restore common property or to pay for the damage and changes to common property then take responsibility for the changes they have made?
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I think we have been down this road before.
Your reluctance to consult or hire a strata lawyer is ham-stringing your ability to resolve many of the issues in your seriously dysfunctional scheme.
In your shoes, I would be asking an experienced strata lawyer if the following action was viable.
To go to NCAT and challenge any unfair by-laws under section 150 of the Act on the grounds that they were oppressive, unconscionable or discriminatory.
I would also ask NCAT to rule, under Section 232, that the model Schedule 3 by-laws be adopted in their entirety (having decided which of the pet and smoking by-laws you prefer).
I would also ask that all costs for this action be charged back to the developer because he has created this untenable situation.
OR
You could seek the compulsory appointment of a strata manager of your choice for a period of six months with the specific remit to sort out the finanicial status of the scheme and to introduce and register the model by-laws.
Your developer is a bully who treats you, your neighbours and strata law with contempt – this would soon become apparent at an NCAT tribunal.
But it won’t if you don’t take the first step and don’t cave in whenever the developer offers a compromise which only continues this ridiculous travesty.
Apply for mediation as a first step (unless you go for a compulsory appointment) and hold your ground.
And talk to a lawyer!
Alternatively, ring up your local paper, explain how this bully is ruining your lives (in very simple terms or they won’t understand) and see if he can be shamed into behaving himself.
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Unless the roof is the responsibility of the lot owner – and this would be highly unusual – then the Owners Corp has to foot the bill. It’s their roof and guttering and should have made sure the leaves were removed regularly to avoid this kind of incident.
It’s just another example of how penny-pinching and negligence leads to greater costs and, inevitably, finger pointing and shirking of responsibility.
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@7ate10 said:
You have already asked this question on Whirlpool … however, you have changed the facts so that the people here agree with you.There’s a lot of very aggressive people over there, many of whom seem to have no idea how strata works. Accusing people of bad parenting is an example of the “piling on” that people seem to enjoy a lot on social media these days.
Regarding the question of “changing the facts” – if that’s what has happened – I don’t see the point if what readers want is advice.
We can only advise people on the facts as given; if they don’t tell us the whole story then they only have themselves to blame if our advice is inappropriate.
I think this issue has been covered enough and I am now closing the discussion.
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@actyve said:
Is there some rule of thumb for evaluating what fees are reasonable?No but there is a rule of thumb that says if you don’t use your strata manager a lot then you are better to have a low up-front fee but if your are on the phone to them every day then you’re better to have an all-in fee with no extras.
The world has changed a lot in the past 18 years and some of the charges you are getting now didn’t exist before.
Take your bill to another strata manager and ask them what they would charge for these services.
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@1 Of 8 said:
Now, there is a sign on the letterboxes that says ‘No riding of skateboards and bicycles or playing on the driveway’, but according to our strata manager, there is no bylaw in place that prevents my child from playing on the driveway as long as I supervise him.Remove the sign as it has been placed on common property without permission.
My son hasn’t played on the driveway for 6 months now as he’s worried about being attacked again.
Talk to the police about warning the neighbours about the possibility of getting an AVO against the neighbours. Verbal harassment is covered by AVOs
… these men came outside and started to record and photograph my son and said they didn’t need parental consent to do this in public places and on common property.
Common property is not a public place – there is a significant difference. They can’t do this and not expect to get into trouble.
The photographing and recording of children is a whole other issue – your neighbours might want to think about the consequences of a complaint to police.
They said they plan to stop me from getting onto the EC this year, so that they can write up and register new bylaws that prevent kids from playing on common property under any and all circumstances. Can they actually do this?
If they have a majority of votes (by unit entitlement) they can elect their own committee at the AGM, so yes to the first issue.
As far as changing the by-law is concerned, that would require a special resolution and that would mean that not more than 25 percent of the votes (by UEs) were cast against it.
In real terms, all you need is two other owners to agree with you and that would block any new by-law. You might only need one other owner if your combined UEs add up to more than 26 percent
Can they vote against having me on the EC?
If they have the support of a majority, they can vote for others instead of you, and maybe reduce the size of the EC so that only their nominees are elected. In short, you need to get four other owners onside to secure your position
Can they set up such restrictive bylaws without the consent of all owners? Or would that fall under the grey area of harsh, unconscionable or oppressive bylaws?
As explained above, they would need the support of five other owners (depending on the UEs) to pass a by-law. You could challenge the by-law on the above grounds at NCAT but that could go either way.
This latest verbal attack (on common property by the way) has now triggered a lot of anxiety in my son. He’s very worried that his mum is going to get arrested, fined or attacked if he walks outside. He says won’t go outside to put the bin out or to check the mail anymore.
See previous comment about the police but don’t expect them to adjudicate on strata law. This is about your and your son being abused and intimidated by aggressive neighbours who are photographing and filming him without your permission.
Having said all that, how noisy is this scooter? Presumably noisy enough to draw residents out of their homes. If that’s the case, can’t you just get a quieter one?
And if there is a noise issue, then the neighbours have access to proper channels along which to pursue complaints. Their behaviour is not acceptable in any community.
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I recall a chat I had with the former Fair Trading minister Victor Dominello who told me that Section 232 (2) of the Act was designed in part with a view to making lazy and neglectful strata committees fulfil their responsibilities.
You are lucky that the committee has decided to do nothing as that makes your next step very clear.
First download this form and use it to apply for mediation at Fair Trading, which is compulsory but free. If and when the strata committee either doesn’t turn up or refuses to do anything or delays taking action, you can then apply for orders under Section 232.2 (below) using this form.
It may be that when they see you are serious, they might do something about it. Or they might say they are going to do something but never get round to it … in which case you have taken the initial step required before you can go to the Tribunal.
232 Orders to settle disputes or rectify complaints(1) Orders relating to complaints and disputes
The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following:
(e) 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,
(2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if:
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
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It doesn’t sound as if this unit’s hot water system is self-contained (especially since a plumber has said they can fix the common property pipes to resolve the problem).
If that’s the case, and just out of general interest, what is the process in Queensland for compelling a Body Corporate to fulfil its legal obligation to maintain and repair?
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I’m hoping Lady P will hop in here as she’s our resident Queensland expert. But the Body Corporate has a responsibility to maintain and repair common property in most states so they need to be reminded of this and pull their fingers out before someone gets hurt.
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