[Jimmy-T]

@Sir Humphrey said:
The DA probably intended to require a minimum number of parking spots for the number and size of units so having one more actually on the ground is unlikely to be a problem.

Here in the City of Sydney, the council is just as likely to set a maximum number of parking spaces, to try to “encourage” residents on to public transport.  So it’s worth check with your local council to see if there’s an issue with the maximum number of allocated spaces before changing anything. 

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[Jimmy-T]

I can see what you are trying to do here but I’m not sure a motion at a general meeting is the way to do it (although, admittedly, a general meeting is the best chance of getting people all in the one place).

With that in mind, and at the risk of contradicting myself, perhaps a motion trying to establish a voluntary code of conduct for residents might be the way to go.

At the very least it would give you the chance to air some of the issues.  your proposed Code of Conduct could be something as simple as this (below).  What do you think?

INTERNAL DISPUTES: CODE OF CONDUCT

1. In the event of a dispute with a neighbour regarding residents’ behaviour, we encourage residents to raise the issue politely, in person, with their neighbour.

2. If this fails to achiever the desired result, or proves too confronting, we advise residents to write to the strata committee secretary with details of the complaint.

3.  It is the Owners Corporation’s belief that issues that can’t be resolved amicably in person tend to be exacerbated if they are pursued via direct communication by letter, emails or other methods.

4. By reporting issues to your strata committee, it gives them the chance to register the complaint and assess if a by-law has been breached and, if so, take appropriate action.

5. Residents who choose to pursue issues on their own without involving the strata committee should take care not to be in breach of by-laws and regulations related to “nuisance” and the right of owners to the peaceful enjoyment of their homes. 

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[Jimmy-T]

There are two possible avenues here, but they both require an element of bluff.

If you have the standard by-law that says residents mustn’t interfere with the “peaceful enjoyment” of other residents, get the committee to send an official “Notice To Comply” which carries the threat of a fine.  An official looking letter – you have to use the prescribed form – might do the trick.

Another option is to look at Section 153 of the Act (below) which would require you to seek mediation for her alleged “Nuisance” on the grounds that she is using common property (your letterboxes) to cause distress and offence.

Now, I know taht is a long shot, but the prospect of being dragged before a mediator and/or a tribunal and potentially fined may be enough to put her back in her box.

Worth a shot?  Poison pen letter writers often work on the basis that they can’t be exposed or called to account.  Create a scenario where exactly that might happen and it could do the trick.

 

153   Owners, occupiers and other persons not to create nuisance

(1)  An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:

(a)  use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or

(b)  use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or

(c)  use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.

Note.

 Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use or enjoyment of the common property or another lot.

(2)  This section does not operate to prevent the due exercise of rights conferred on a developer by the operation of section 82 of the Strata Schemes Development Act 2015.

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[Jimmy-T]

@kaindub said:
In NSW you cant transfer money from one fund to the other

BUT I think I have a way.

The OC can return money to owneirs from any fund

WRONG!

Under section 76 of the Act, you CAN transfer funds from one account to the other.  however, under section 77 you CAN’T refund owners without a unanimous vote.

For instance, your admin fund can borrow cash from the Capital Works (sinking) Fund provided it is paid back withing three months. 

Many schemes will re-borrow the funds whenever they are supposed to be paid back. Sooner or later you have to reconcile the amounts but it gives you the breathing space to let you adjust the proportions of levies to bring everything back into equilibrium.

LawoftheLand’s strata managers are doing exactly the right thing (apart from explaining the legal basis for this).

One other thing – there are no Stratakops … unless you are embezzling the funds, no one will be going to jail.  It’s all good provided it’s all transparent and the Capital Works Fund doesn’t end up having less money in it than it ought to have.

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[Jimmy-T]

I’d lay a pound to a penny that this is just a flat battery.  Most locksmiths or key cutters will do this for you … and it’s not a legal issue or an owners corp issue either.

By the way, congrats to “community resident” for using “the strata” within hours of my having written about how much it annoys me.

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[Jimmy-T]

@Ziggy said:
Thanks Jimmy. Am I allowed to say on this site who the lawyers are that have lined up? They featured in a story you ran… 

I don’t see the point, really.  Wait till you get a positive result.

PS do you ever get sick of this job?  

I like to think I’m helping people who have nowhere else to turn.  And I get a buzz out of making a difference (like getting legislation changed).

But little things get to me – like people who write their whole issue out as a headline. 

At the other extreme, there are those who go into the section, say, on Common Property and create the headline “common property” or “problem” or “strata”.  Yeah, we know – we need something specific.

Oh, and I get the irrits when people write “I complained to the strata …” meaning what? Who?  It’s forgivable in newbies – we’ve all been there – but I once kicked someone off the site who purported to be an expert but, despite several polite requests,  used that phrase for everyone from the strata committee to the building manager. Lazy and misleading!

I get irritated by people who go all “Rumpole of the Bailey” (sorry, that should be “Good Wife” for our younger readers), arguing their point interminably, choosing bits of the law that support their argument and ignoring the bits that don’t.  Really, what’s the point?

And I get a wee bit frustrated with people who say they want advice on what to do but what they really want is someone to fight their battles for them.  As a result, Flatchatters’ good and well-researched advice goes unheeded.

But I have to say, I enjoy this most of the time although if it weren’t for my loyal, smart and committed Stratagurus – Sir Humphrey, Lady Penelope and ScotlandX – I could not do this every day.

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[Jimmy-T]

@Larry said:
If … an owner subsequently renovates their bathroom and is therefore required to install waterproofing under the Building Code, does the new waterproofing automatically become part of common property and Owners Corporation therefore become responsible for its maintenance / repair? 

Or does a bylaw need to be passed specifying who would become responsible for maintenance/repair of the new waterproofing?  

As ScotlandX indicated, a by-law would be required to install the waterproofing required by the building code and that same by-law would, sensibly, apportion the care and maintenance of the waterproofing  to the lot owner.

The fact that there was no waterproofing before is irrelevant. You would treat this as a change to common property and pass the responsibility to the lot owner.

You could argue that the lack of waterproofing was a defect but that would be pointless as all the bathrooms are affected and therefore all the owners would pay for the rectification anyway.

Keep it simple!

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[Jimmy-T]

@stressed said:
However if there is no waterproofing in a bathroom, then non-existent waterproofing cannot be common property.

Says who?  If you attach something to common property then it comes under the same regulations as common property

The waterproofing when laid by the lot owner, is lot owner property to be maintained by the lot owner.

Yes, provided the by-laws passed to allow the change to common property specifies that – otherwise it defaults to the owners corp.

The waterproofing cannot suddenly become common property. There are no provisions either in the SSMA 2015 or SSDA 2015 which allow this to happen.

Not so. Again, anything that changes common property by virtue of being attached to it becomes common property unless the enabling by-law says otherwise. See section 108 of the Act (below).

It would be in contravention of basic property rights. It would be the same as saying that kitchen cabinets, when they are attached to a common property wall, suddenly become common property.

What basic property rights? You are comparing ducka and apples – a new kitchen is legally defined as a minor renovation, changing the waterproofing of a bathroom is a major renovation

Also a by-law is not required because they are only written in respect of common property and the waterproofing is not common property.

Argue this dubious point all the way to the Tribunal, if you wish, but your quoting of selective parts of the law (including two out-of-date Acts) will get you nowhere. 

 Section 108

(1) Procedure for authorising changes to common property

An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.

(2)  Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.

(3) Ongoing maintenance

A special resolution under this section that authorises action to be taken in relation to the common property by an owner of a lot may specify whether the ongoing maintenance of the common property once the action has been taken is the responsibility of the owners corporation or the owner.

(4)  If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance.

(5)  A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless:

(a)  the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and

(b)  the owners corporation makes the by-law.

(6)  The by-law:

(a)  may require, for the maintenance of the common property, the payment of money by the owner at specified times or as determined by the owners corporation, and

(b)  must not be amended or repealed unless the owners corporation has obtained the written consent of the owner concerned.

(7)  Sections 143 (2), 144 (2) and (3) and 145 apply to a by-law made for the purposes of this section in the same way as they apply to a common property rights by-law.

Note.

 A new by-law or other changes to the by-laws for a strata scheme must be approved by a special resolution of the owners corporation (see section 141).

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[Jimmy-T]

Just because an area is common property doesn’t mean everyone has access to it (your neighbours’ balconies, for instance).

If you need access, you should ask the building manager, strata manager or committee.  If want that to be a permanent arrangement, you probably need a by-law (although i ahve to wonder why would you need access to the power boards on a regular basis?)

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[Jimmy-T]

It would certainly be worth talking to a lawyer, including asking them what your chances of recouping some of the costs are.  But make sure it’s anexperienced strata lawyer.

Having said that, the tribunal encourages owners to appear themselves and leave lawyers out of it, where possible.  But I would say yes, especially if you can find one who has successfully run a case of this general nature.

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[Jimmy-T]

@Ziggy said:
… all the reports in the world, will not persuade them.  

As has been stated many times already – you don’t need to convince the committee, you need to convince the Tribunal (and if what you say is true, you have all the evidence you need).

Apply for mediation, then move to orders at NCAT, even if it is just to compel the committee to seek an expert report and three quotes for the necessary repairs.

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[Jimmy-T]

I was thinking about this the other day.  Strata managers come and go like Airbnb guests and it’s hard to know who to call when you need to.  Some buildings used to have the name of their strata managers on or near the front door.

My old mate Victor Dominello had this fantastic plan to get all the data about all the strata schemes in NSW when he was minister for all things strata.  But then he got promoted.

But wouldn’t this be a great place to start.  Just get all the strata managers in NSW to send a list of their strata plans so it could be logged on a computer that we could access (with public floggings for those who declined or forgot to update their listing). Too easy!

Meanwhile, by far the simplest way is to knock on a door and ask someone who it is that sends their levy notices out.

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[Jimmy-T]

And there you have it.  This fact sheet from the office of the Ombudsman lists, right up near the top of things it can investigate in councils, their failure to enforce the terms of development approvals.

Is anybody game to make the call?  Is your council turning a blind eye toclearly proven holiday lets?  We can pretty much ensure it will get maximum publicity if you do.

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[Jimmy-T]

@Beth99 said:
It’s like we need to pick our battles and I am going to focus on the fact that some are  being non financial and holding a position.

You certainly do have to pick your battles but the question of owners being non-financial (NF) when they are on the committee is probably the hardest.

There is nothing to stop anyone from being elected to the committee when they are NF – it’s just that an NF owner can’t nominate anyone, including themselves, to be on the committee.

And even if a NF owner did make the nomination, any decisions made by the committee would stand (under section 38, below).

The best you can hope for is to point out during a meeting that committee members may not vote while they are non-financial and neither can they vote if the person who nominated them is NF at the time the meeting was called and still haven’t paid what they owe (see Schedule 2 (9)(4) below).  This could also prevent a forum from being formed as a quorum is only formed when more than half of those “entitled to vote on the motion” are in attendance.

However, if you want to go down the road of who is validly elected and who isn’t, the first thing to do is to ask the strata manager to show you the pieces of paper on which the nominations were made (or some record of that).  

What you are looking for is proposers who  were standing for election themselves, an proposers who were non-financial, members who self-nominated who are listed on the strata roll as joint owners.

If you snare enough of them in your net, you can then go to Fair Trading for a mediation at which you invite them to resign and then to NCAT where you seek orders declaring the election invalid and calling for an EGM to elect a new committee – this time with all proper procedures in place.

Good luck.

Schedule 2 (9)
(4) Voting rights cannot be exercised if contributions not paid

A member of the strata committee is not entitled to vote on any motion put or proposed to be put to the strata committee if the member was, or was nominated as a member by a member who was, an unfinancial owner of a lot in the strata scheme at the date notice of the meeting was given and the amounts owed by the unfinancial owner were not paid before the meeting.

 

38 Acts and proceedings of strata committee valid despite vacancies or defects

(1) This section applies if, when any act or proceeding of a strata committee was done, taken or commenced there was:

(a) a vacancy in the office of an officer of the owners corporation or any other member of the strata committee, or

(b) any defect in the appointment, or any disqualification, of any such officer or member.

(2) Any act or proceeding of a strata committee done in good faith is as valid as if the vacancy, defect or disqualification did not exist and the strata committee were fully and properly constituted.

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[Jimmy-T]

@Millie said:
This is a Zoning (Local Council) issue, not a strata issue.  Councils must be mandated to enforce zoning legislation.  

It’s going to be at least a year before there is new legislation in place.  Councils are doing nothing – is there any mechanism that can compel them to act … short of booting them out at the next election? 

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