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@scapegoat said:
She refuses to even speak to anyone who challenges her, but nevertheless accepts a free strata levy payment per year – because of all the work she does.Well, I would start right there – if she is being give a levy holiday agreed in advance at the AGM, the Owners Corp is breaking the law. If she is getting one retrospectively, I would flag the idea that this should be reviewed more closely as it seems to be a salary rather than an ex gratia payment (so again it is breaking the law).
Literally tens of thousands of people do a lot of work for their committees with no thought of payment. What’s so special about your scheme? If she doesn’t want to do it for free, let her stop.
Regarding your plan to limit terms, I can see the appeal for dealing with rusted-on control freaks, but it would also wipe out the limited supply of committed and experienced committee members.
Better to deal with the problem head on – propose that you cut the payments on the basis that the committee is breaking the law and then call for a new chair when she blows up.
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A word of caution, that document is dated 2004.
But the basic principal applies – elements of the building aren’t intrinsically unsafe just because the code had changed. But if you have to repair or replace them, or do any work adjacent to them, you have to bring them up to code.
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The owners corp can deny you permission to change the balustrade for any reason, including aesthetics. However, if it is for safety reasons they would have to be pretty sure of their ground.
Even then, you can challenge an owners corp ruling at the Tribunal (NCAT) if you think it is ill-founded, unreasonable or unfair. Submit your application and if they refuse, start proceedings by asking for a mandatory mediation at Fair Trading before proceeding to Section 232 orders at NCAT.
Meanwhile, it might be worth quietly telling someone on the committee that this is what you plan to do – not as a threat but so that they know what they are getting into if they refuse.
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I would reiterate my previous point – how did no one notice tonnes of dirt being carted out? Or were they like the POWs in the Great Escape, trickling it down the legs of their pants as they walked through the yard?
This is what happens when strata owners “don’t want to get involved.” You are involved, whether you like it or not.
And, one way or another , you end up paying for the problem to which you turned a blind eye.
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@Austman said:
Having both building and contents insurance is really the key to getting all damage covered. But as the OP has discovered, a contents insurer might not pay until they are satisfied that the building insurer has denied cover.At the risk of being seen to promote our sponsors, if your strata scheme has CHU insurance and you have their home and contents insurance, you are covered and don’t have to pay your excess.
And, more generally, anyone who doesn’t have home and contents insurance with any firm is taking a gamble that they shouldn’t expect anyone else to pay for when they get a fruit salad instead of three cherries.
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I’m going to weigh in here very reluctantly because the literature says one thing and simple logic (and common law) says another.
Let’s start with the oft-quoted “Who’s responsible …?” document which is the liability “bible” for strata managers and anyone else who takes an interest in strata. Now, I know that is only technically applies to your scheme if you have adopted it under a by-law but you can bet if you take an issue to the Tribunal, it will be cited. The document was conceived by the Lands Dept and given government blessing so it carries some weight.
Note 13 (below) says the owners corp is not liable for damage caused by a failure of common property unless the OC was provably negligent in its duties, which cause the common property to fail.
Some lawyers would say that failure to anticipate or check for a potential problem (such as ageing pipes) was negligence. Others say that the Who’s responsible document is irrelevant – common law says that if something belonging to you causes damage to something belonging to me, then you are liable for repairs.
The simple answer is to have home and contents insurance that would cover all sorts of potential problems. And, if you don’t have it, you have to ask yourself how it’s going to cost you to convince a Tribunal or a small claims court that Section 13 of Who’s Responsible is as flawed as a leaky pipe.
Note 13
If damage is caused to a lot owner’s property while the owners corporation are effecting a repair, the owners corporation are responsible to fix the damaged property. However, if the cause of the damage to the owner’s property was not made when the owners corporation were fixing the problem; instead it was caused by the problem itself, then the owners corporation are not responsible to make good the owner’s property unless the owners corporation can be deemed negligent.
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Yes, the ceiling is common property and yes the Owners Corp needs to give permission.
Also, if there really is asbestos in it, then the committee should insist that it must be removed by professionals.
Have a look at this fact sheet from the EPA. Your council will have its own rules – but, as an example, here is a fact sheet from City of Sydney.
Now, please don’t tell me the neighbour wants to remove the ceiling so he can use the space in the roof – that’s a whole other conflict cluster.
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@Felix said:
Some of the Owners received their electricity accounts yesterday from Energy Australia and I was astounded that our personal account for 3 months went from $323 to $1,300. How best do we challenge this or does it seem OK?Double check that the bills were based on actual readings and not a “guesstimate”. Everyone is expecting higher bills and some energy providers may be taking advantage of that to save money of accurate readings (with the intention of levelling them out later).
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@Kangaroo said:
Long time, no contribution. Yes, in my opinion this site has been giving wrong advice on the matter of unauthorised additions to common property for a long time.And yet, this is the first time you have deigned to give us the benefit of your wisdom.
The heading on the Adrian Mueller document is: ARE WE GETTING IT WRONG? and it was issued this month, so this is a fresh take on the issue.
Who is the “we”? Perhaps it’s every other lawyer and strata manager I have spoken to up till now.
If only you had let us know sooner!
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That makes really interesting reading and it has changed my view entirely on how I would approach this issue (although the end result might be the same).
I know Adrian Mueller so I would not doubt the validity of this view for a second.
My only question is the same as the one at the top of the paper; Have we been doing the wrong thing? And why?
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I have to admit I am a bit confused by this question.
Most strata insurance has a built-in insurance for the strata committee and office bearers.
Many exclude possible areas of legal issues, such as defamation. Strata law allows for committee members acting in good faith to make mistakes without being unduly penalised.
So, I have to ask, what is it that your office-bearers (Chair, secretary and treasurer) are planning to do that would require additional insurance?
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Every building is different – as is every insurance policy. Shop around (and have a look at CHU, our sponsors).
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You are entitled to inspect all paperwork relating to the business of your strata scheme (on payment of a set fee of about $30).
If there is no paperwork related to the renovations, you can then start proceedings with a mediation at Fair Trading followed by action at the Tribunal, probably seeking orders that the Owners Corp follows strata law in dealing with the renovations.
You should be able to resolve this at mediation but the quesion comes down to whether you just want proper procedures to be followed or if you want to punish the chairman and strata manager for not following them.
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@Lady Penelope said:
JT and Austman – My point is that there has never been a Special Resolution moved and approved regarding this renovation, therefore, the OC responsibility under [s108] would not apply.Well, you would think that but I am told that is not the case. The basic pricipal is that someone has to be responsible for common property and in the absence of a special resolution, that must fall to the OC. This is one of the reasons that Owners Corps allowing owners to change common property on a nod and a wink are playing with fire.
Many years ago I wrote about a block where one owner had replaced his balcony sliding doors with bi-fold French windows, then sold, without informing the OC (who could not have known this was happening unless they had rowed out into the sea at Bondi).
The doors eventually failed and the new owner felt that the OC should pay for the repairs. The legal advice given at the time was that, in the absence of a formal agreement to the contrary, the OC must assume responsibility for common property.
I believe a compromise was reached when the OC “offered” to reinstate the sliding doors rather than repair the new ones. At any rate, it never went to court.
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