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With you on that, Lady P, but I wonder if the problem is Sub-section 2: “Any such locking or safety device, screen, other device or structure … must have an appearance, after it has been installed, in keeping with the appearance of the rest of the building.”
I suspect it’s the appearance of the net that’s bugging other owners, and the allegations about drilling into the waterproofing are assumptions they are not entitled to make, but have done so to boost their claim.
It’s a mess.
By the way, some of you may have noticed that the original poster’s screen name has changed. That’s because, despite all our requests not to do so, she has used her own name, leading to the identification of her, probably her neighbours and her strata manager.
It’s a pain – I wish people would just read the notes before they post. We can only have open and free discussions if anonymity is protected.
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@JimmyT said:
OK, we are now getting conflicting information here and there has apparently been a complaint by council about altering the appearance of the building.Right now, I’m thinking this would be best left to an NCAT Member to adjudicate, when both parties will have to present all the information, not just the parts that support their case.
Or you could sit down with a neutral but well-informed mediator (maybe not Fair Trading) and try to reach an acceptable compromise.
That said, Nettie, unless you can show us your actual by-law that mentions installations for child safety, then you may be on a stickier wicket than we had thought.
By the way, I have had to edit some of my previous posts, based on new information and, especially, my own prior misconceptions. I did so for the benefit of anyone in a similar situation, but apologies anyway.
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@Nettie said:
Cathy Sherry sent my a copy of the bylaws which referred to the child safety bylaw you spoke of. She specifically looked up my bylaws and the architectual code and was of the opinion (academically) that I was in the right.Every strata scheme has (potentially) different by-laws. Do you have a copy of your building’s by-laws? You’ll find them at the back of your contract of sale and possibly attached to the minutes of your last AGM.
Please note that I said in the beginning it was a new building.
My mistake. If I’d seen that I would not have cited the pre-1996 by-laws.
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@Nettie said:
The notice is hand written onto a typed form. It just states Bylaw 7 (which I think is the same as bylaw 5 in the new strata laws)The Notice To Comply has to contain the details of the by-law, including, one would think, any exceptions or exclusions
It states “Installing unapproved netting to the balcony of unit xxx causing damage to the common property” Our building is a new building. We moved in last April.
OK, so this is clearly not an older building with lower balustrades (or the pre 1996 by-laws). Why do you think you need netting?
You have breached Section 108 of the Strata Schemes Management Act 2015.
Anything that attaches to common property shouldn’t be installed without a special resolution by-law that passes ongoing responsibility to the lot owner (you). That is basic strata law, hence the reference to section 108. That doesn’t prevent you from doing this – but you have to follow procedures.
I might add that just because a significant number of owners don’t want to pass the special resolution by-law doesn’t mean that it can’t be done. But you would need to get NCAT to issue an order compelling them to pass the resolution if they declined to do so by normal means.
I would just let this run its course. Let them take you to NCAT and tell the Member there that you received conflicting and contradictory advice and you require a ruling by which you are happy to abide.
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OK, we are now getting conflicting information here. It seems building is not pre-1996 but is in fact brand new (if we are talking about the same building as Mr Strata, above).
In that case, the by-laws will be different. Also there has apparently been a complaint by council about altering the appearance of the building.
It’s very hard for us to give good advice when we are only getting half the information.
Right now, I’m thinking this would be best left to an NCAT Member to adjudicate, when both parties will have to present all the information, not just the parts that support their case.
And Nettie, unless you can show us your actual by-law that mentions installations for child safety, then you may be on a stickier wicket than we had been led to believe.
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No – unless they own two properties.
Under section 31 of the Act co-owners of a lot can only both be on the committee if they also own another lot. Basically, it’s one seat per lot.
31 Persons who are eligible to be appointed or elected to strata committee
(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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To answer your specific questions:
1. If i don’t comply will they then take me to the tribunal
That’s their prerogative but if they are found to be “vexatious” then they may have costs awarded against them.
2. Will the tribunal fine me if they find me in the wrong (which I don’t think they will)
Theoretically, yes. But I very much doubt it in this case (even if they do rule against you). It’s not like you are a nuisance neighbour having parties every night. You’re a parent trying to do the right thing within the parameters of strata law.
3. Should I apply for mediation or do they do it.
Mediation leading potentially to an NCAT order would have been the civilised way for them to have done this. You could apply for mediation to stop the harassment
4. What happens if they go straight to the tribunal without mediation?
Notices to Comply do not require mediation. You will be judged on whether or not you have breached the by-law. The architectural thing is not a by-law (as far as I can see) so any reasonable member would toss that as a matter of course.
5. I was told that you can’t apply for mediation with fair trading if you’ve already been issued with a failure to comply. Is that right is has the fair trading website been misinterpreted?
I’ve never heard of this but that doesn’t mean it’s not true. Who told you this?
Also, I’m curious about your use of the phrase “failure to comply” and I wonder if the committee has issues the NTC correctly. If they haven’t, you should feel free to ignore it.
The correct form should contain the by-law (and only one by-law) that you have allegedly breached with details of how you have breached it.
I could be wrong but I think the committee has decided that mediation and NCAT orders won’t get them the result they desire and therefore have decided to go with an NTC in the hope it scares you into submission.
The architectural stuff should have been dealt with through mediation and orders (if at all).
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If the Notice To Comply wasn’t on the agenda for the committee meeting issued before the meeting, then it has no standing and the Notice To Comply (NTC) will be kicked out at the Tribunal (NCAT), for that reason if no other.
If this is an argument about the safety of children versus the look of a building, tell them to take you to NCAT and let a member decide on the basis of photographs that you are happy to provide.
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@Flame Tree said:
Thinking I’ll shoot Motions for a few things I just can’t stand and seek to address the others that may just first require reasonable if robust negotiation.I tried that tactic a couple of years ago in my building and ended up just annoying people who wanted a quick meeting (as they all do).
The dictatorship in charge now uses that whenever they can to portray me as a trouble-maker rather than a problem solver.
My message – choose your battles carefully and don’t try to fight a war on too many fronts at the same time.
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There are many reasons committee officers choose to do the work of external managers themselves. Often it’s a case of wanting to make a contribution or be hands-on, other times it’s about control.
If I were the professional manager I would be asking if my people were being given the opportunity to do the work, if they had failed to fulfil the terms of the contract and what would happen if the chair sold up or just couldn’t do it any more.
If I were on the committee, I’d be glad of the flexibility in this arrangement, knowing that ther was a fall-back when the voluntary work ended and a benchmark for what was expected of the managers in the future.
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I have to confess I’m a little shocked at the consideration being given to these rude and inconsiderate people.
You are entitled by law and (probably) by by-laws to “the peaceful enjoyment of your lot”.
Once somebody knows that their noise, regardless of its cause, is disturbing you, then it’s only reasonable to expect them to do something about it. That they have chosen not to means you may now feel free to be at least as inconsiderate as them.
This is what I would do.
First, I’d send them a note saying that they are in breach of the by-laws, strata laws and local council noise laws and you are giving them one final chance to pull their heads in.
I would explain that, in case they didn’t know it, by being in breach of these laws and by-laws they could be subject to fines. Also, if they are found to breached strata laws and by-laws then they are in breach of their lease and could be evicted.
But none of this is necessary if they just showed a little consideration for their neighbours. It’s their call: Pull their heads in or start thinking about where they are going to live next.
If that doesn’t do the trick, I’d drag them and their landlord through Fair Trading and NCAT, call the police very time they made a peep after 10pm and generally make them want to move out rather than wait to be evicted … all with an apologetic smile that said “I tried to warn you …”
But maybe that’s just me.
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@Stevecro said:
Jimmy its not only the principle that needs to have a licence, anyone acting as, or performing the duties of a strata managing agent must hold a licence.I’m really not 100% sure about this but I looked up THIS PAGE on the Fair Trading website and it seems to say that registered strata manager can carry out the functions of a strata manager provided they are employed by a strata manager who holds a licence.
I’m not saying you’re wrong but if you’re right, it’s bloody confusing.
Salespersons and registered managers
… registered managers require a certificate of registration and must not act as or exercise any of the functions of a … registered manager unless the person does so as an employee of the holder of a licence under the Act.
The Act defines a registered manager as a registered strata manager, registered community manager or registered on-site residential property manager.
The Act defines a registered strata manager as a person (other than the holder of a strata managing agent’s licence) who, as an employee of a strata managing agent or a corporation that carries on the business of a strata managing agent:
a) exercises any of the functions of a strata managing agent or
b) engages in any other activity that is prescribed by the regulations for the purposes of this definition.
Similar definitions in the Act describe a registered community manager and a registered on-site residential property manager.
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Since the Strata Manager is there to do as the Committee instructs (and not the other way round) ulitmately, the responsibility is the committee’s and, specifically, the secretary’s.
However, if you have delegated the secretary role to the strata manager, then it’s pretty much up to them. A letter to the SM and Secretary asking when you are going to have an AGM would be worth the price of a stamp.
However, remember that the new strata laws specified one AGM per financial year rather than one a year on or near the anniversary so, theoretically, there could be an 18 month gap between your last AGM under the old system and your first under the new one.
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I can’t find any reference to “Cat 5” insulation.
In any case, in my opinion, it’s better to specify the desired outcome – acceptable noise transmission – than the method.
If the cladding scandal has taught us nothing else, we now know for sure that installers of any building products (and their colluding customers) will lie about the quality of the products they install if they can save money.
Put the onus on the person changing the flooring to get it right. Who’s going to get NCAT to order a floor be ripped up to check that it has the right material under it?
If an owners claims the installed the right material but they haven’t or it doesn’t work, then the neighbour below will have to live with the consequences.
Finally, have a look at this page from the OCN (which, I have just realised, quotes me).
Any timber floor over acoustic underlay is a poor substitute for carpet over quality underlay when it comes to sound insulation. Specify the noise reduction, not the product – if only because a better product might come along and you will have to rewrite your by-laws all over again.
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