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No sooner had I posted the last time than the actual by-law that was adopted and then overturned appeared in my inbox.
It makes interesting reading and, in my non-legal opinion, tries to cover too many bases and in so doing leaves itself wide open to being overturned in this way.
What do you reckon?
Special By-law- Prohibiting Illegal Uses (Including Short Term lettings)
(1) An owner or occupier of a lot must ensure that the lot is not used for any purpose that is prohibited by law or that requires approval or authorisation of an authority or under any law without that approval or authorization.
(2) An owner or occupier of a lot must ensure that the lot is only used as a dwelling or domicile.
(3) An owner or occupier of a lot must not engage in any commercial activity that involves the lot being used by its occupants on a short-term basis for less than thirty (30) days.
(4) An owner or occupier of a lot must ensure that the lot is not used for any commercial purpose that involves the lot being used by its occupants on a short-term basis for less than thirty (30) days.
(5) An owner of occupier of a lot must ensure that the lot is not advertised or promoted for any use whichis prohibited by this by-law.
(6) An owner or occupier of a lot must ensure that the lot is not occupied by more persons than are allowed by law to occupy the lot.
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One issue in all this – a clue to the puzzle that’s missing – is the actual wording of the by-law that was overturned.
If the by-law just said “we don’t allow short-term letting” then that is a straight-forward case of interfering with “dealing”.
If the by-law said something like, “we require all residents to abide by our residential-only zoning which does not allow short-term letting” then that is another matter entirely. Or it should be.
Strata laws already state that you have to abide by the law and that includes zoning. My building in Sydney, for instance, has zoning that is very specific about the minimum period for lets (three months).
This is basis on which people bought into the building but, now that hipsters at City of Sydney have decided this law is no longer cool, it seems there may be no way of protecting our properties from rampant opportunism.
As far as Queensland in concerned, the laws there were evolved to encourage investment in holiday letting in the first place. Strata law there was created to assist developers and investors and not with a view to building communities, something that has been an afterthought (if it’s even been considered).
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If the majority of owners in your scheme want the timber fence replaced with a similar fence, the simplest thing to do would be to inform the neighbours that you will be replacing the fence and then charging them for half the cost (for which they are liable under the Dividing Fences Act).
If that doesn’t galvanise them, then so be it – they want you to do all the hard work for them but they want they reward.
I think the Dividing Fences Act states that in a situation like this, the body that wants the more expensive option on a shared improvement has to pay the difference. Maybe that will change their attitude.
Otherwise, I suggest you commence mediation through Fair Trading with the adjoining scheme with the stated intention of seeking orders at NCAT under section 233 (below) to require them to share the cost of the fence.
Strictly speaking, this dispute falls under the Dividing Fences Act which might render it invalid under 233 (1)(b) but perhaps if you made the claim not that they were refusing to pay their share, but that they were refusing to negotiate properly, it might get you to NCAT and then get an order.
Either way, you can’t let their reluctance to pay for representation prevent this moving forward. NCAT is supposedly a free service that anyone can use with or without a strata manager’s or lawyer’s advice (although you would be nuts to go without some professional support).
So have a word and tell them that doing nothing is not an option (despite my most to the contrary today) and they can either step up or be forced to jump.
233 ORDER FOR SETTLEMENT OF DISPUTE BETWEEN STRATA SCHEMES
(1) The Tribunal may, on application by an owners corporation for a strata scheme, make an order to settle a dispute between that strata scheme and another strata scheme if:
(a) the strata schemes are contiguous or the dispute relates to a lease of land, or other arrangement relating to property, of one of the schemes, and
(b) the matter in dispute is not regulated by or under any other Act.
(2) In this section, a strata scheme is
“contiguous” with another strata scheme even if it is divided by, or separated from the other scheme by, a natural feature (such as a watercourse), a railway, a road, a public reserve or a drainage reserve.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.
@Lady Penelope said:
” … compliance with the Building Code of Australia is not retrospective. Under the Environmental Planning and Assessment Act 1979, a building only has to comply with the Building Code of Australia at the time of construction. As a result, the Building Code of Australia does not require you to continually update your windows, balcony railings and fire doors etc.”I think that means you don’t have to replace and upgrade whenever you discover that something in the building is non-compliant. However, I think whenever you have to replace something that’s non-compliant for some other reason – such as, it’s broken – it must be with something that is compliant with the new standards.
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@Renocamp said:
The committee forced our landscaper to stop work and dont want to put him through that again. Ridiculous thing is they dont have an issue with the back pavers and they are not even grey!Again no official rejection just issues they have raised so want to be prepared.
Preventing the work from continuing sounds like an official rejection to me. The committee needs to tell you what they will and won’t accept and why, or back off and leave you alone.
I would be sending them a letter asking them to specify their issues but if you haven’t heard within seven days, work will proceed.
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Yes
A poll vote can be called at any time before or after a show of hands and applies to elections too.
In practice, the votes cast by normal means would have a UE value applied to them. A smart strata committee would have prepared for this and created some sort of spreadsheet, just in case a poll vote was called for.
By the way, I am intrigued by the references below to office-bearer being elected by poll votes. I thought office-bearers were elected by the committee after the y have been elected. I will look into this.
This is what section 14 of Schedule 1 of the Act says:
14 DECISIONS AT MEETINGS
(1) Simple majority vote to generally apply
A motion put to a meeting, or an election of officers of the owners corporation or members of the strata committee, is to be decided according to a majority in number of the votes cast for and against the motion with each person having one vote for each lot in respect of which the person is entitled to vote.(2) Vote of original owner who owns more than half of lots to be reduced
For the purposes of determining an election for officers of the owners corporation or members of the strata committee or appointing a strata managing agent (other than in the case of a poll ), if the total unit entitlementof lots of the original owner is not less than half of the aggregate unit entitlement, the value of the vote in respect of the lots held by the original owner is taken to be reduced by two-thirds (ignoring any fraction).(3) Value of votes to apply for poll
If a poll is demanded by a person present and entitled to vote on a motion or for the election of officers of the owners corporation or members of the strata committee at the meeting, the motion is to be decided according to the value of the votes cast for and against the motion and the value of a vote cast by a person entitled to vote in respect of a lot is equal to the unit entitlement of that lot. However, the value of the vote of an original owner is to be calculated in the same way as for a special resolution.Note : Section 5 sets out the manner in which a special resolution is determined.
(4) Polls
A poll may be demanded immediately before or after a vote decided by a majority in number has been taken. The demand for a poll may be withdrawn by the person who made it.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.
Have you ever considered applying for the statutory appointment of a strata manager?
I ask because there is a notorious case in Sydney where one side of a dispute (the owners corp) won in an battle over a staircase built without permission while, at the same time, the losers in that case had a strata manager appointed because, they successfully argued, the other side was wasting money on legal battles over things like stair-cases (I kid you not!).
Now, NCAT cases do not create a precedent (thank goodness) but I think it would be worth your while applying for a statutory appointment on the grounds that:
a) The owners corp is pursuing legal action for malicious and personal reasons
b) The owners are not being properly informed of why they (and not you) are having to pay tends of thousands of dollars for issues that could and should have been resolved amicably long ago
c) The vendetta continues and more legal bill await because of the OC’s reluctance to accept a decision by a superior court.
d) the committee has shown a callous disregard for basic safety in the building while pursuing personal battles
Your argument would be, not that they shouldn’t appeal, but that an independent expert (a strata manager) should decide whether this is a valid approach.
Also, all owners need to know what their money is being spent on and why and you can show that the minutes of the committee have not properly reflected the actual events.
Talk to a reputable strata management firm about supporting your application (and I am very happy to recommend our sponsors Strata Choice for this) and they will tell you whether they think this is worth pursuing. It will cost you nothing and will resolve most of your problems – at least for the next couple of years.
In about six months your neighbours are going to be hit with a special levy to pay everyone’s legal bills. They will want to know why no one put a stop to this.
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Then you have leverage. Tell him if the smoke alarm is not installed in a manner that’s acceptable to you, you will force him to hold an EGM, block access to your unit (which may well delay all the other installations) and fight him through NCAT.
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I think it would probably help a lot if you sat down with the chairman and asked what his thinking was, why he was pursuing this course of action and then explain your personal problems with it.
It may well be, for instance, that the fire inspectors have told him that while hard-wired smoke alarms aren’t mandatory, they could be what prevents you from getting an order to install a sprinkler system (a scenario I have encountered elsewhere).
There’s clearly a lack of communication here – and that may well be the only problem.
So remember the Flat Chat credo – never ascribe to malice anything that can just as easily be explained by stupidity.
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To do this you have to go to NCAT with a strata manager who is prepared to act in that role. And that is the easiest way to find out what your chances are.
If a reputable SM company with a good track record will take you on, it means you have a good chance of success.
If you don’t have a good chance of success, they probably won’t take you on.
It really is as simple as that.
By the way, I have never heard of this idea that NCAT waits until disaster has occurred. It may be true and it wouldn’t surprise me but I have never heard this before.
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@scotlandx said:
Jimmy – there’s only one owner, she wants the floor replaced.Advice to self: Drink less, read more!
dahni said
the owner we are in dispute with keeps upping the anti and creating drama where there shouldn’t be any. It’s very frustrating and that’s why I’m trying to clarify the letter of the law. Very unkind accusations (to be polite) are being flung at us and we are trying to reduce the venom and vitriol by behaving professionally. We hope…
The best way to deal with this is sometimes to say you are not equipped to deal with it: “Please take us to Fair Trading and NCAT because we don’t want to do the wrong thing by you and all the other owners.” Mediation is now free at Fair Trading – if they real want a fair result, what’s stopping them?
Seriously, regardless of what the law says, you have no obligation to make the running on this. All you have to do is return serve.
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@danih said:
… the sanding and polishing was done by the owner without the knowledge, permission or cooperation of the OC.
Somewhere lurking at the back of my mind (and possibly nowhere else) is a clause in strata law that says lot owners have a duty to care for any common property that forms part of their lot.
Regardless of that, the simplest answer is for you to tell the owner who want their parquetry repaired that if she’s not happy with your offer she can take you to Fair Trading – which you’ll be happy to do.
As for the person who wants the new floor, tell her you will pay the same amount towrads the new floor as you would have for the repairs, once it is laid to your satisfaction (re insulation etc) provided they take ongoing responsibility for its maintenance from here on in .
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This is covered by Section 153 (below) which establishes that smoke drift can be considered a nuisance, depending on the circumstances, regardless of any by-laws that may or may not be in place.
The only question is whether the strata committee:
- asks the smoker to stop then pursues a case to mediation and NCAT if they don’t
- or supports the victim if they take the case themselves
- or ignores the victim and leaves them to their own devices
In the final scenario, the smoke victim could ask for mediation (which is free) and then seek orders at NCAT – but they really shouldn’t have to do this on their own.
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.
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