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Ah, beaten to the punch by Scottie.
It really makes no difference. As she says, it depends if they are part of the residential lot, separate lots, or common property with exclusive use attached.
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Bear in mind that the law changed late last year so the criteria for what is required may have changed.
You need to get the owner to separate the overall work into cosmetic, non-major and major alteration, each of which requires a different level of approval.
It is in their interest to do this as they don’t want to risk work that doesn’t require a high level of approval being delayed by failure to pass the big ticket items in an all-inclusive proposal.
The differences are defined in the Sections 109-111 of the strata Act and Section 28 of the Regulations.
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Cases at NCAT are supposed to be no to lo-cost with legal representation the exception rather than the rule (although it helps to have a strata lawyer prepare your case).
Regarding a strata manager, if you allow your eyes to drift to the top of this page you will find an ad for our sponsors who have just been voted strata managers of the year for the second time in a row. Call them and tell them you came from this website.
Your commercial neighbours sound like they have become so sure of their immunity from challenge that they have left themselves wide open.
meanwhile, be smart about this. Don’t go after the committee, go after the individual lot owners who have taken over common property without proper permission or compensation. They can’t use your funds against you becasue you aren’t going after the Owners Corp.
Even if they had concocted votes at AGMs, there is a principle called “fraud against the minority” that says they have to pay for any common property they take, regardless of what bogus votes they may have passed.
Get that rolling and then go for statutory appointment of a strata manager.
And of course there is no legal aid – but you can be awarded costs when there is clear evidence that the other party has acted illegally or corruptly.
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I would say this building is quite clearly being run for the benefit of the commercial enterprise, to the detriment of the residential owners.
The first thing I would do is find a reputable strata manager and ask them if they would be prepared to be nominated as statutory appointment. Then, with them, compile a list of all that’s wrong with the building and your documented efforts to improve conditons that have been thwarted.
In the meantime, it might be worth creating a ‘trigger event’, such as presenting a list of demands that you know will be rejected, such as:
- demand that they install separate meters for the individual units (or, at least, meters for power and water separate from the commercial lots)
- removing the illegally constructed shed
- installing proper bins with full recycling facilities
- doing something about illegal short-stay letting
- installing proper intercom entry phones
- redistribution of costs so that residents and residential owners aren’t subsidising commercial interests
- Anything else you can think of that would be a reasonable request.
Make sure that you can prove the date on which the committee received the demands and make sure there is a notice that if these matters are not progressed immediately, you plan to take further action via Fair Trading and NCAT.
After two months have passed (or sooner if they refuse) you can start proceedings via mediation at Fair Trading leading to seeking orders at NCAT.
Or, and this would be my preference, take your friendly strata manager to NCAT and ask that they be made statutory appointees until all the issues were resolved.
If this was successful, the Owners Corp and strata committee would be sacked and all decisions would be made by your statutory appointee.
I would also at this stage be talking to an experienced strata lawyer about all your options. Just an observation, but it sounds like theis whole scheme was set up so that the residential lots would subsidise the commercial ones. If you can show that’s the case, you should be able to get the Tribunal onside.
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The strata committee is really just a change of name for the executive committee.
Non-member owners can still attend but can only get speak if a majority of committee members agree by a vote at the meeting. You would speak to the chair before the meeting to ask that a request to speak at the meeting be considered.
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The owners corporation has a duty to maintain and repair common property which you can enforce be seeking orders at NCAT.
You have already taken the first step by seeking mediation at Fair Trading so now you can move on to seeking orders at the Tribunal.
I think you could seek orders under section 232 (1)(e) and (2) “Failure to exercise a function” which under Section 106 is defined as the “duty of the owners corporation to maintain and repair common property”. (Extracts below)
Provided the Owners Corp hasn’t passed a by-law saying they will not maintain the lift (which is highly unlikely) it would be worth pursuing orders to get it done.
They will doubtless try to make you look bad by threatening other owners with special levies to pay for this but this is nonsense – you could get it done with a strata loan.
You might consider getting an independent lift engineer in to assess the problem and write a report (possibly with a view to getting the work done).
And as for the non-resident owners running the building – it sounds like it’s time for a palace coup. They have probably got where they are by proxy farming – all you need to do is get resident owners galvanised and kick the self-interested absentees out.
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:
(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,
(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:(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.
106 Duty of owners corporation to maintain and repair property
(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(7) This section is subject to the provisions of any common property memorandum adopted by the by-laws for the strata scheme under this Division, any common property rights by-law or any by-law made under section 108.
(8) This section does not affect any duty or right of the owners corporation under any other law.
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You might want to have a quiet word with your local council. Garden sheds on balconies sound like a fire risk, misuse of space and a visual intrusion to me.
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@Lady Penelope said:
There are various books that may assist the Chairperson in difficult Meetings as the Act is not overly helpful in this area:This is one of the many areas where Fair Trading has consistently let us down. The law tells us what we can, must and mustn’t do at meetings, but doesn’t offer any assistance with how to go about running the meeting in a civilised fashion.
A simple guide on how to conduct a strata meeting and a reasonable set of non-compulsory standing orders would give the many, many newcomers in strata – and more than a few rusted-on committee members – an idea of how the meeting should be run (and something to compare their meetings with).
Strata meetings are very different from any other kind of meeting, where the levels of knowledge, experience and engagement vary wildly, and that’s before you even get into the out-of-control sense of entitlement some owners bring.
We haven’t all been on charity committees, company boards or members of our school’s debating society (although you can tell the ones who are – they’re the ones shouting “point of order!” despite the fact that there are no orders).
I suppose we have to remember that the people who devise the laws, regulations and publications spend their lives in committee meetings and assume we all do the same.
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@twosailram said:
I find it is often better to leave my speaking to last then summarise a motion for voting that can be my wording, not the pedant’s. That’s what then makes it into the minutes.At the risk of being labelled a “pedant” if the motion isn’t on the agenda, you shouldn’t be formulating it at a meeting.
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@Sir Humphrey said:
I would be a bit careful about too strictly enforcing one turn each.I think the rule on “one turn each until everyone who wants to speak has had a say” is there for when one person or a noisy minority try to dominate and it gives you a valid basis on which to shut them up.
The exchange of information you described may violate the strict reading of the rule but I doubt if it would offend anyone.
I see the Standing Orders as more of a safety net than a strict batting order for speakers. Many committees get along fine without one … until the inevitable loudmouth comes along and takes advantage of everyone else’s good nature.
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But this is clearly annoying you. How many lots in the scheme?
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What do your by-laws say?
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@Austman said:
I did use the word “usually”. But OCs/BCs must be fair. That’s mentioned regularly in tribunal cases.I don’t disagree with most of what you’re saying but, being more optimistic about human nature than I probably should, I’m always looking for more elegant solutions than “one size fits all” (and, yes, I know it’s easier and possibly more effective just to say “there’s the rule now everybody must obey it).
In this specific case, I would be looking at a modified version of Model Bylaw 1 that said something like:
An owner or occupier of a lot must not park or stand any motor or other vehicle on common property, or permit a motor vehicle to be parked or stood on common property, except with the prior written approval of the owners corporation and provided their vehicle is parked in such a way that it does not obstruct or impede access for other owners or emergency vehicles. This is a courtesy, not a right or obligation, and the strata committee may withdraw approval at any time.
That would create a perfectly reasonable by-law that would allow the people who are not causing a problem to keep doing what they’re doing and pull the selfish residents into line.
Having said all that, Beaglegirl should sit down with the other owners and ask for their support (while canvassing the options aired here). Make it their concern and not just her problem. And then someone needs to talk to the miscreant to make them realise that if they continue with their selfish behaviour, they are going to end up in trouble.
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@Austman said:
It can be a tricky situation because OC/BCs must treat all residents fairly which usually means equally. So it becomes an “all or none” situation.I’m afraid I disagree and I think that’s a fundamental error we often make in strata – equating equality with fairness.
It would not be fair to the people who can’t get round the 4WD to allow everybody to park on common property and it wouldn’t be fair to the people who don’t cause an obstruction (or steal visitor parking … or refuse to move their vehicle) to prevent them from doing something that does no one else any harm.
That’s why I suggested using the by-law if it exists in that scheme (the model one is below). There is nothing that says if one owner is given permission then all the others must too.
The committee can give permission and if the common property blocking owner feels they have been treated unfairly, they can argue that point at the Tribunal when the Owners Corp pursues them for fines.
The committee can also withdraw permission if it’s not working out. Strata law is meant to be flexible to some extent to allow us all a bit of wriggle room so we can make the compromises required just to get along together.
It’s also intended to be rigid enough to deal with residents who are just selfish and make life difficult for other owners.
I think if every opportunity has been given to the parking thieves to do the right thing and they have refused, then they will have a tough time arguing their case (although there’s no guarantee that a smart lawyer and a dimwitted Tribunal member might have that rescinded).
But I don’t think the concept of treating residents or owners equally figures anywhere in the Act or Regulations. I also don’t believe in pandering to residents who refuse to understand or obey the rules, then demand their rigid interpretation when it suits them.
You could be right and the tribunal might throw out any fines … but before you even get to that, chummy might have made other parking arrangements. It would have to be worth a try
1 Vehicles
An owner or occupier of a lot must not park or stand any motor or other vehicle on common property, or permit a motor vehicle to be parked or stood on common property, except with the prior written approval of the owners corporation or as permitted by a sign authorised by the owners corporation.
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