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These are the Turks and Caicos by-laws that were upheld by the Privy Council:
Each Proprietor shall … not use or permit his Residential Strata Lot to be used other than as a private residence of the Proprietor or for accommodation of the Proprietor’s guests and visitors. Notwithstanding the foregoing, the Proprietor may rent out his Residential Strata Lot from time to time provided that in no event shall any individual rental be for a period of less than one (1) month … (Emphasis added)
… not use or permit to be used the Strata Lot or any part thereof for any illegal or immoral purpose, nor for the carrying on of any trade or business other than periodic renting or leasing of the Strata Lot in accordance with these by-laws unless such trade or business activity has been approved in advance by the Executive Committee in writing, which approval may be revoked for cause.
However, I think a very simple by-law that would stand would be something like:
Owners, head tenants or sub-tenants may not use their lot for any purpose not permitted by any superior law, including local authority zoning, which restricts use of the lot to “residential only”, as defined in the scheme’s Development Authority, and precludes short-term holiday letting.
Or something like that. Check on the OCN’s website for their version.
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Coincidentally, this is exactly the same advice as I am giving an other owners on a different issue.
The Owners Corporation or committee can’t just decide to ignore its own by-laws.
So start proceedings at Fair Trading seeking mediation leading to a binding agreement to issue a Notice To Comply and pursue it the NCAT if need be.
If they refuse start proceedings at NCAT seeking orders under Section 232 (extract below) which says that he Tribunal can make an order to settle a complaint or dispute about the operation, administration or management of a strata scheme, and/or failure to exercise, a function conferred or imposed by the Act or the by-laws of a strata scheme.
Failure to issue NTCs for by-law breaches is a failure under section 232, as was explained to me by former Fair Trading minister Victor Dominello before he moved up the government food chain.
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:
(a) the operation, administration or management of a strata scheme under this Act,
(b) an agreement authorised or required to be entered into under this Act,
(c) an agreement appointing a strata managing agent or a building manager,
(d) an agreement between the owners corporation and an owner, mortgagee or covenant chargee of a lot in a strata scheme that relates to the scheme or a matter arising under the scheme,
(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,
(f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.(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.
Start proceedings at Fair Trading seeking mediation leading to a binding agreement to start work within a specified time frame.
If the committee refuses, start proceedings at NCAT seeking orders and costs under Section 232 (extract below) which says that he Tribunal can make an order to settle a complaint or dispute about the operation, administration or management of a strata scheme, and/or failure to exercise, a function conferred or imposed by the Act or the by-laws of a strata scheme.
Failure to maintain and repair common property is right in this Section’s gunsights.
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:
(a) the operation, administration or management of a strata scheme under this Act,
(b) an agreement authorised or required to be entered into under this Act,
(c) an agreement appointing a strata managing agent or a building manager,
(d) an agreement between the owners corporation and an owner, mortgagee or covenant chargee of a lot in a strata scheme that relates to the scheme or a matter arising under the scheme,
(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,
(f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.(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.
@Olivia said:
We have a small storage area in the basement and a by-law stating that only resident owners can use.There’s part of your problem right there – tenants are entitled to have access to any part of common property that’s available to owner residents.
I’m a bit sensitive to this as I remember only just retrieving (as a tenant) a locked trunk from a storage room that the owner residents had decided should be for them only and, as a result, had decided to clear out any “rubbish” owned by tenants.
Tenants make up more than half the residents in strata. They have rights to use common property through their landlords.
I’m not sure why your storage room is not insurable but the answer may be to install cages and let them to all residents on a first come, first served basis, including any restrictions that you wish to impose.
If the area is too small for that, then perhaps you or a consortium of interested owners could buy it from the Owners Corp (at a fair price, under the usual strata law conditions) and then so as you wish with it.
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I’m chasing OCN and Mr Goddard on this right now. Watch this space
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No surprise there – they have nothing to gain and everything to lose by helping you to prove your case.
The first step is mediation through Fair Trading (the upstairs people don’t have to attend but you do) and only then can you take the matter to the Tribunal.
Especially now that the upstairs neighbour refuses to cooperate, you should try to get some sort of objective sense of the noise at its worst, including sworn statements or just letters from neighbours and friends saying they have witnessed the noise.
Your noise diary will also be invaluable when they turn up at the tribunal with nothing to back their case, because they refused to cooperate.
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I suspect the ‘misplaced’ amount has been used to cover an historic shortfall in income because of your levies having been previously set too low, something that has been remedied by future levies being higher.
The keyword here is “future”. If your scheme doesn’t have enough money in the bank to run the building, you will always be at least three months behind as you wait for the quarterly levies to come in.
The best way to give yourself a buffer is to top up the funds and then make the levies more realistic.
To be sure, I’d be asking your strata manager if this is what has occurred. But there’s probably nothing sinister in this. Experienced strata managers will shift funds around to minimise the stress on owners, but the money is always there, somewhere.
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How many units are in the scheme?
The owners corporation has an obligation to maintain and repair common property but unless you can prove contributory negligence – i.e. that someone who had the power to do something knew about the problem but did nothing, then don’t waste your time chasing compensation.
You might be better off employing your building inspector … if you employed one before you bought.
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I think that the adjudicator would just assume the new strata manager would go about getting all this sorted out – but I will certainly raise this with the NCAT Member at the seminar on Saturday
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I think your committee has got itself into a mess by thinking that 110.6 (b) allows then to include any other changes they want as minor alterations when there are limits on that, including 110.7 (c):
(7) This section does not apply to the following work:
(c) work that changes the external appearance of a lot …Since they can’t create a by-law that supersedes the Act then anything that changes the outward appearance of the lot – like French windows and, indeed, an awning – would be kicked up to the next level and would, indeed require a by-law that included your acceptance of repairs to and maintenance of the awning and the common property to which it is attached.
I would urge them to look at passing a catch-all by-law that would include any work like yours that owners could use as an off-the-peg solution where you just added the specifics of the work you wanted to do and they were then covered by it.
The by-law they have is open to too many erroneous interpretations and should be scrapped and replaced with an new catch-all by-law and a non-exhaustive list of items to which it might apply.
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What does “BA approved” mean?
And why do you think they have done this?
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It sound like this dog is not getting the attention it needs, certainly according to the document I posted.
Bear in mind that there are provisions in strata law to have a pet for which permission has been given removed if it proves to be a nuisance.
These people just haven’t done their homework so if they end up having to move or find a new home for the dog, that is really not your problem – and you could be doing them and their puppy a favour.
They are clearly thinking having a kitten will be a companion for the dog. Again, according to what I’ve read, that could turn very nasty very quickly.
I wonder if trying to organise an “intervention” with the RSPCA might head off problems later.
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This is a perennial question but the fact that it’s in a two unit strata gives it an interesting twist.
Basically, in a case where common property leaky piping causes damage to a lot, the Owners Corp is only responsible for the damage caused in repairing the lot, not the original damage caused.
Now, that has always seemed a bit nutty to me but it certainly works in favour of the owner of the damaged unit in a duplex – because otherwise each owner would be paying for half the damage repairs.
So this is how it breaks down.
Any damage cause by leaks from pipes, taps and connections inside the other unit is the responsibility of the upstairs owner (in this case).
Any damage caused by common property leaks (from pipes in walls and ceilings) should be claimed on the home and contents insurance of the downstairs owner (but they could claim half the excess from the upstairs owner, as being a member of the owners corp).
Any repairs to common property or lot property required because of work done to repair a common property problem would be split between the owners (because they are the owners corporation). We’re talking about fixing the hole in the ceiling or wall that they had to make to get to a leaky pipe.
Hope that makes sense (not sure if it ever can).
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Fair Trading neither creates strata law nor enforces it. This is not Fair Trading’s role and they shouldn’t be issuing statements like that.
They can express an opinion but they often get things wrong and there are plenty of lawyers who would say your by-law is valid, especially in view of the recent WA Appeals Court and Privy council rulings.
The only real way to test the by-law is to get the committee to issue a notice to comply then apply for a fine if she does it again. If she refuses to pay the fine and challenges the by-law, the Tribunal will decide if it is valid.
The recent case in Woollahra was more about a badly written by-law than any such by-law being invalid.
As she is in dispute with the Owners Corp, it would be reasonable for the committee to declare the position of chair vacant and elect a new member of the committee to the role. It’s a simple as that.
Failing that, you can (after mediation) apply to NCAT for orders to remove her as chair or from the committee completely.
The disgraceful thing here is that the chairwoman knows the majority of owners don’t want airbnb but she doesn’t care. There are plenty of buildings with by-laws just like yours that are effectively keeping airbnb at bay.
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have a look at this: https://www.petwave.com/Dogs/Breeds/American-Staffordshire-Terrier/Personality.aspx
Maybe things aren’t as bad as you think – although it depends a lot on the dog owners and how they treat the animal.
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