[Jimmy-T]

Yes, the law is in place and yes, six owners night be able to force the other two to sell (depending on how unit entitlements fall).

However, read this post and you will see that there is a long and complicated process before this can move ahead – and other options available, such as “redevelopment”  that wouldn’t involve capital gains tax.

It’s a shame her strata manager is so hopeless – they should be providing this advice.

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[Jimmy-T]

I would certainly be looking for further information before I supported this.

For instance, has anyone in the block (especially on the committee) recently had tiles replaced or thermostats repaired at Owners Corp expense?  If so, this would be grossly unfair.

I also worry about lot owners taking responsibility for things that are embedded in common property walls or cavities.  Who pays for repairs of common property when the owner needs to cut in to repair a thermostat.

I would want the committee to explain in detail why this change is necessary and I would consider this a non-urgent change of status.

So I would go to the meeting, tell them they need to explain to everyone in the block more clearly and fully why this is necessary.  Until then you will recommend to other owners that they say no.

I also think the rider in 106 (3)(b): “its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme” has not been fully addressed. Don’t the tiles on a balcony affect the appearance?

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[Jimmy-T]

Actually, you may need to talk to your committee, unless your strata manager has delegated powers (although most do).

But first, check what is says in your by-laws.  I’m guessing that if they say anything, it will be that owners can’t park on common property without written permission. 

Also, they should not be parking in visitor parking. Essentially,  they are parking thieves – they are taking up common property that they are not permitted to use to increase the size of their storage.

Right now, I would ask your strata manager to send them a letter telling them that they are not allowed to park on common property without written permission and that is unlikely to be given due to their previous lack of cooperation with other residents.

Also, they are not allowed to park in visitor parking EVER as that is in breach of both your by-laws and your development approval.

Finally, your strata manager could outline the processes and potential fines that can be imposed if they continue to obstruct traffic by parking on common property, visitor parking and refusing to move their vehicle. 

If they don’t comply, and you have the appropriate wording on your by-laws, have a committee meeting and get the committee to give permission to the people who aren’t obstructing access. That would take care of your concern about upsetting your neighbours.

And while they are at it, the committee should ask the strata manager to issue a Notice To Comply regarding the parking in the visitor parking space.

If they feel they are being treated unfairly, it’s up to them to pursue the Owners Corp – you shouldn’t hamstring yourself by second-guessing what they will or won’t do.

Oh, by the way, fines and costs are now payable to the owners corp for breaches of by-laws so your neighbours will not be out of pocket if you pursue this. 

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[Jimmy-T]

Wow.  You are even stricter than me.

I’m guessing fines, Tribunal orders and even more fines might be the starting point, and see how you go. 

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[Jimmy-T]

We have versions of this throughout our building.  The cars’ bonnets tuck under the storage box and the don’t impede access.  Since they aren’t attached to the floor – the just sit there – there is no need for by-laws or DAs.

We do have a by-law, however, that restricts the kind of storage box you can have, just to maintain uniformity and to avoid the situation where someone might put a small shed in their space then park overhanging common property. 

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[Jimmy-T]

Scottie’s right (as usual) but there is a problem in excluding people because they are not entitled to be there – and that is that you have to check everyone who is.

In a small scheme, that wouldn’t be too much of a problem but to avoid accusations of targetting one owner, you probably should have a registration system at the entrance to the meeting room

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[Jimmy-T]

I agree.  I would be pointing out that this is a courtesy, as the third person has no right to be at the meeting, being neither an owner, tenant or proxy, and as such, permission can be withdrawn at any time.

I would add that the meeting may be adjourned while the person is removed if they fail to remain silent – and that includes, interruptions, interjections and “stage whispers”. 

I’ve been at a meeting where a woman shouted abuse at the chair and demanded that the committee be sacked, loudly egging on any other voices of dissent and creating a very nasty and unnecessarily combative atmosphere.  

It turned out later that she had already sold her apartment and only came to the meeting with the sole intention of causing trouble.

Stay strong.

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[Jimmy-T]

I wonder if your owners corp is concerned about a facility that is frequently used for short-term letting.  This allows the hosts to “share” their homes without having to be there.

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[Jimmy-T]

That’s an interesting summary but it skips one of the major points that has been overlooked (but could form the core of the the Government’s proposed legislation):  Permitting by-laws to limit, restrict or forbid short-stay letting (Page 17 of the Discussion paper).

Yes, that is currently prevented by Section 143 which protects owners’ rights. But then, until the government changed the law, you couldn’t get 75 percent of owners ordering the other 25 percent to sell their unit to developers.

In adopting the “forced sales” law, the government established once and for all that the greater good of a strata community comes before the rights and desires of individual owners.  

And that, I think, is what will lead to a change in the law allowing a substantial majority of motivated owners to control the use of their units by self-interested individuals for have no regard for the very values of their communities that makes their properties attractive options  to overseas tourists.

I note your comment that: “The NSW Government recognizes that an owners corporation has a useful role to play for impacts on amenity, strata costs and individual safety.”

That’s big of them.  So just let me get this straight – we pay for the apartments, then we pay to have them brought up to scratch when the developer has wandered off to make a few million elsewhere, then we give up our time and/or money to manage them and help them to function as a community … and we have “a useful role to play?”

Well, that’s certainly more than Airbnb who, whatever their touchy-feely literature says, are only interested in making as much money as possible from the sweat of our collective brow.

Airbnb’s so-called protections have been shown time and again to be tissue thin.  When problems arise, the victims are rarely if ever happy about the assistance they get (if any). And the rating system is a joke for one-time guests who will just get another mate to book the flat the next time they want an all-weekend party.

I find it hard to stomach the sight of our politicians bending over backwards to accommodate a business that actively encourages people to ignore planning laws.

And as for the “negligible” effect on rents and availability of properties – that is just selective analysis.  In the areas where short-term letting is most common, rents have gone up by a factor of two or three times the rest of the city and availability has dropped (as evidenced by two peer-reviewed Sydney University studies).

In short, in the areas where Airbnb urges visitors to “live like locals” – the locals are being driven out (as is happening all over the world).

The figures may be “negligible” across Greater Sydney as a whole, but in the suburbs where Airbnb is most active they are significant and profound.

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[Jimmy-T]

I agree that the statement is not entirely accurate – in fact, this is something I have been saying for years … if common property fails, and that causes damage to personal property, then the Owners Corp should be liable to repair or replace the damaged property.

However, the “Who’s responsible  …” document created by the Lands department in consultation with strata managers says what I said in my article (Note 13). And the new Act actively encourages owners corporations to adopt the terms of the “Who’s responsible …” document as a by-law.

So you’re right – and you could fight this in NCAT or in a District Court as a matter of common law.  But that clause in the “Who’s responsible?” document is going to keep tripping us up and, reluctantly, my view is  that you have to decide whether or not it’s worth fighting.

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[Jimmy-T]

@WinterHill said:
Would we have a fair claim to get the body corporate to pay to have the lattice re-built, as it was completely done without our knowledge or approval?   

Absolutely.  They removed your property and you are entitled to demand that they replace it with the same or an acceptable alternative – or pay your bills when you do it yourself.

But check with them to discover what their problem was and perhaps you can compromise on the replacement.

This is entirely their responsibility and there’s no reason that you should suffer because some hyperactive member of your strata committee can’t take the time to read the building’s by-laws.

If you get any resistance, tell them this is a cut and dried case and they can either just do it or be dragged through NCAT at their expense, and then do it.

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[Jimmy-T]

@dingo said:
I was reading item 19 shutters. 

Apologies for accusing you of selective reading.  However, let’s look at the case you have quoted.  It is an NCAT hearing, not an appeal, so it is the very basic level of ruling which, generally speaking, may not be much more reliable as a guide to good law than the toss of a coin.  

Also, NCAT rulings do not create precedents so the next person to come up with an identical argument before a different Member could get an entirely different result.  

Finally, there are cases quoted elsewhere where the “external appearance” issue is embodied in a by-law (such as the situation with the black blinds that I mentioned earlier).

Is there a by-law?  If there is, then you will need a special resolution.  If there isn’t I think all you need is permission as a “non-major renovation”

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[Jimmy-T]

@dingo said:
According to this recent NCAT case shutters require a special resolution

https://www.caselaw.nsw.gov.au/decision/593787fbe4b074a7c6e165d3

I totally disagree. That is a highly selective reading of that case ruling and if you look at Item 12, it includes the wording of the act which lists non-major renovation with the phrase “not limited to …”.

In other words, just because internal shutters aren’t listed it doesn’t mean they are not allowed.

All the worst, all you have to do is get permission from the committee (delegated powers from a general meeting)  which cannot be unreasonably withheld.

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[Jimmy-T]

@Hamish said:
Does the lot owner have the right to build this boundary fence without permission and having a special by-law for exclusive use of common property?  

You have a compulsory manager appointed – presumably because of past dissent between owners.  The manager pretty much takes the role of the strata committee/owners corporation and, on the face of it, can approve minor changes to common property provided they don’t breach the by-laws.  

If you have a by-law about additions to the exterior of the property being in keeping with the look of the building, then they have possibly over-stepped their boundaries.

But what are we really talking about here? You have been denied access to the area in front of the other villa – but would you have ever used it anyway?

The real issue is that as part of the owners corporation, you are responsible for maintenance of an area to which you have no access.  This is by no means unusual – apartment block balconies are common property but they are also exclusive use.

I would consider approaching the other owner and manager and asking them to either remove the fence or submit a by-law for exclusive use, accepting responsibility for the maintenance of the area, to which you will not object.  They will allow you to do the same if you so desire.

I realise you feel as if you have been robbed in some way but this may be an opportunity to formalise an informal agreement and make the land-grabber responsible for the land they have grabbed.

And never forget the five words a lawyer loves to hear: “It’s a matter of principle.” 

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[Jimmy-T]

AH, Lady P got in before I could post this …

Look, those insurance and emergency issues are all kind of plausible scenarios but I think you need to go back to basics.

Put an item on the agenda of your next meeting that the committee agrees to issue a Notice To Comply to the miscreants for breaching whichever by-law you have that tells owners not to park on common property. And don’t let the chairman talk anyone out of it.

A Notice To Comply is a warning – stop breaking the by-laws or you could be fined – but it comes with a sting.  If the culprits ignore it, they can be fined. So the committee is not issuing a penalty, it would just be progressing the matter to the next stage, as is required by strata law.

Now, if your Chairman is conflicted by this, he can vote against (and have that put in the minutes) or abstain. But if your chairman is blocking moves to solve a serious issue with untold consequences, he has gone from being a source of a solution to part of the problem.

Do not be deterred and if you get any resistance, explain to the chairman that even if he persuades other owners to give in to this selfish behaviour, you and other committee member/owners will take this directly to Fair Trading and on to NCAT where he can explain to them why he has been protecting his buddies.

Forget all the other stuff about insurances etc. If the chairman doesn’t want to enforce the by-laws of the building, especially when it’s for the benefit of the majority of owners, he should step down.

The only other thing is to make sure you use the correct form and that it is both filled in correctly and is backed by a motion on a strata committee agenda and minutes that indicate a majority of the committee agreed.

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