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@Fgc said:
The exact wording is “must not obstruct lawful use of common property”. I don’t think it needs to be a passageway per se, but if it were to get to the tribunal (it won’t), the first question they’re likely to ask is – if it’s causing an obstruction – why has there been no complaint for three years? And what is the lawful use of the common property that it is obstructing?
I think any half-decent lawyer would argue that a lawful use of common property involves it being kept clear.
I think you may have to bite the bullet here and say that as soon as the strata committee provides a secure and easily accessible bike room, you will use it.
Then define what you mean by “secure” and ask that the bike room regularly reviews the usage and removes abandoned bikes so that it doesn’t become a bike dump. For that, by-laws will have to be written and passed and that will give you roughly another year of “informal” parking.
Be reasonable but determined at every stage. How’s that for a compromise?
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@Fgc said:
Section 3 refers to obstruction of common property, which I don’t think would be compelling with the bikes having been in their exact position for three years and not blocking any thoroughfare.I don’t think the definition of obstruction in this regard can be narrowly defined as physically impeding a passageway.
Otherwise, are you referring to your schemes’s specific by-laws?
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Do you have the standard by-law about not smoking on common property?
And has the tenant registered the change of use of the garage from a place for parking a car to a retail outlet (or whatever it is he uses it for). Somewhere deep in the Local Government Act it defines a garage as a place for storing a car – anything else is a change of use.
A Notice To Comply about the smoking and a call to the council about the change of use might stir things up a bit.
But I’m afraid your concerns about the door sound a wee bit like clutching at straws.
By the way, if your strata committee refuses to do anything about by-law breaches (or does nothing about a legitimate complaint withing two months) you can take them to the tribunal and force them to do something.
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@kaindub said:
Truleconcernsapart from NCAT, most courts awards costs to the winner of the case.
Everything else in your post is spot on but I’m not sure about this statement. In the recent case concerning Colleen McCullough’s will, the judge ordered both sides to pay their own costs. Perhaps it was because the details in the case weren’t clear cut but there was a “winner” in that her widower got the cash.
In any case, that simply reinforces your argument that even when you win, you can lose, something that’s echoed in David Sach’s post on our front page.
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@Ziggy said:
At a recent General Meeting, I pointed out that a motion was out of order and that it should be declared thus. The SM refused to do this and the SC remained silent.Any thoughts on who is to blame here? And what SSMA breaches were both committing?
Without knowing the motions and the context, it would be wrong to comment. Perhaps a motion that you thought was out of order wasn’t.
But the Strata Manager has a responsibility to bothe the strata scheme and to the law to correct errors when they have the opportunity to do so.
Strata committees are, almost by definition, populated by lay persons. If the strata manager isn’t going to offer professional advice, why are they even there in the first place?
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The reason that you are getting mixed messages may be because it varies from issue to issue.
For instance, issuing a Notice To Comply, seeking interim orders or requesting the statutory appointment of a strata manager or the reallocation of unit entitlements don’t require mediation but most other things do.
Section 238 actions require mediation but that is often just a formality you have to observe before you can progress to the Tribunal. I wouldn’t expect anything from mediation – the other side might not even turn up – but you have to try.
The application form lists some of the issues that don’t require mediation … but yours does.
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I think the best way to deal with this may be to force the other owners to get involved by invoking section 232.1 (e) and 232.2 (below) which is to seek Tribunal orders compelling an owners corporation to fulfil its duties to all residents.
So what you could do is list all the issues that are demonstrably breaches of by-laws or of the Act and ask the Owners Corp or strata committee to issue Notices To Comply.
If they refuse fail to do so withing two months, you can then take them to the Tribunal who should order them to do so.
Obviously, there will be a backlash from your neighbour of some sort, but at least it will be the Owners Corp who are issuing the complaints and not you personally.
232 Orders to settle disputes or rectify complaints (extract)(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.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.
@apartment_living said:
So the neighbours were breaching the by-law by allowing their friends to bring their dogs over?
Yes. But, as we never tire of saying, there are no StrataKops to come and impound the dog and arrest the residents.
However, if this was a common and/or regular occurance, the committee or strata manager could issue Notices to Comply followed by fines.
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Are they using the lobby as living space now? Or is it just the occasional random item left unattended?
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I am not particularly in favour of buildings that have blanket “no pets” by-laws, but I am even less in favour of people who buy into buildings with by-laws that they don’t like and then try to force everyone to abide by THEIR rules.
Mediation is an obligatory precursor to a Tribunal action for people who want to run a case against other owners. By not turning up, regardless of what the majority opinion is, you could give the impression that either you don’t care or that you don’t respect the system.
The owner who wants the dog is obviously planning to go all the way to the tribunal. What you want is as many signed letters as you can get from owners saying that one of the reasons they bought into the scheme is that they didn’t want to live around pets.
That’s all they need to say – going on about barking dogs or fleas or whatever just gives the other side opportunities to pick holes in your argument.
Even a petition that said “I bought into this scheme because it doesn’t allow pets … and allowing pets would discriminate against me,” would carry a lot of weight.
Let us know how you go.
And no, you probably won’t get costs awarded against the owner unless they delay proceedings, and are otherwise obstructive.
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@Ziggy said:
Hi Jimmy what are the rules then in NSW? I did read your other responses to this issue (Section 238)OK, so what is that you need to know?
Owners can be nominated (or self-nominate) for election to the committee in writing before an AGM and they don’t need to attend as long as the chair knows that the nominee approves of being nominated.
Have a look at Part 2 of the Strata Regulations – it has most of what you need to know
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Just be aware that the regulations and processes for electing committees are very different in Queensland from NSW
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I was just flicking through some NCAT Appeals decisions (because I am a sad person) and discovered one which was basically about an owner who had lost rental income because of the owners corps failure to fix a leaking roof.
He was awarded damages, but not as much as he wanted, for all the reasons he claimed.
Now, since neither side won everything they wanted, they were ordered to pay their own costs – so be careful about asking for something the Tribunal or a Court won’t agree to.
Getting back to the cost of taking action against your neighbour I wonder if the high costs are because SGB Lawyers said it was a court case rather than a Tribunal hearing. If so, you may well get a greater proportion of your costs back, if you win.
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