[Jimmy-T]

@c_mcph said:
“The local council ‘owns’ the zoning regulation”Gee, that’s pretty much what you shot me down for saying on this site abut 5 months ago! You said the councils said they didn’t want to do the regulation… to which I replied that it didn’t matter. It is their job! 

Yes I did – but I think my response was that they weren’t doing their job so you had to find another way.

Looking back at the discussion, you criticised me in a series of posts for not including council action in an article I had written about what was being considered by government as the way forward for dealing with  the spread of holiday letting.

It’s worth noting in the Fair Trading comment the phrase “Legislative regulations … can only be enforced by and at the discretion of the relevant authority …”(my emphasis).

In other words, it’s up to the councils whether they do anything or not.  they can’t be forced to enforce their zoning and most choose not to do so. For instance, we know for a fact that CoS has stopped taking calls about the blatant breaches of zoning at one notorious building in the city.

In my ring-around of the councils most affected by holiday lets, City of Sydney – which has the most apartments – had only five cases in the past year or so (they said), Randwick had none but Waverley, right next door, had 10 a week.

Mosman had even openly decided not to pursue breaches of zoning by short-term letting unless they constituted a threat to health and safety.  

So nothing has changed and I will bet you a bowl of pasta and a glass of red at the Tropicana that leaving it up to councils to police will not be the favoured option proposed by the government if and when legislation finally is tabled.  

In any case, I think we may not have heard the last of this. If, as Fair Trading says, councils are the only body that can police zoning breaches, then someone should be telling them to get their finger out .

Or, if apickles is right (Item 4), perhaps someone should run a test case all the way to the Supreme Court to establish a precedent.

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[Jimmy-T]

The inside part of your double brick exterior wall is still common property.  It’s just the way it’s constructed. Your individual responsibility starts at the first molecule of the first coat of paint on the inside of the wall.

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[Jimmy-T]

@Paul Ritchie said:
I wish people who comment on catastrophes would first get some facts before comparing to other buildings and especially other countries. I am a Civil Engineer and the Chairman of the SC in our complex.

Yes, and I wish experts would realise that their experience is not universal before they make rude comments … but, hey, this is strata and all opinions are equal – it’s just that some are more equal than others.

Here are the facts:

We don’t know how many buildings in Australia have dangerous cladding but we do know there are a hell of a lot.

We do know that buildings are supposed to (i.e. “MUST”) have adequate fire safety measures in place but we also know that in some buildings (where Paul is not the chair) these are deficient, untested and routinely ignored.

We also know that there has been a major cladding fire in Australia and it occurred in a building where basic commonsense safety rules, like not cramming all your goods and chattels on to your balcony and not ramming as many students as you can into the available floor space, were ignored.

We have also seen fatalities and serious injuries where internal fire safety measures were ignored or avoided by the developers.

I too live in a building where fire safety regulations are observed and maintained punctiliously.  However, I have seen blocks that not only had emergency fire sprinklers that were not attached to a water supply, but which had been approved by fire safety checks at least 10 times.

Just a random search of the internet will find dozens of examples of fire safety “MUSTS” that don’t measure up.

Take this quote from an American plumbing contractors website:

My experiences have taught me that the standard could be effective — if it was enforced and used in its entirety. I use the word “could” because one of the significant fallacies … is its premise: that all sprinkler systems are designed, installed, tested and inspected correctly when they are installed or remodeled. But they are not!

Now, maybe American plumbers are less diligent than ours, but I doubt it.

In an ideal world we would all be safe, regardless of the kind of cladding we had on our exterior walls.  But it’s not an ideal world and we know that some developers, tradies, inspectors and residents can’t find a corner without wanting to cut it.

So yes, Paul, as you say “we should be targeting compliance with the BCA and for OC’s to ensure the fire systems are properly maintained.”

And as Anthony says (in item 6) we have to rely on the professionals.  But not all professionals are reliable and, more to the point, owners corporations can’t be depended upon to be super-diligent if it means it will cost owners money.

If you want to hear more experts’ views, CLICK HERE and listen to the guys who called in to the James Valentine radio show. That is truly scary stuff. 

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[Jimmy-T]

Well, they say in politics you should never ask a question if you don’t know the answer.  I WAS WRONG!

As I explain in this story, your anti-Airbnb by-laws aren’t worth the paper they are printed on.

It will be a year before we get new laws on short-stay letting.  Time to get your council complaint numbers on speed dial right now.  

And let’s monitor the responses from councils right here. Post your experiences when you call your council and tell them there’s an illegal holiday let in your block.

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[Jimmy-T]

Just to clarify, there is a difference between a “Notice To Comply” and NCAT Orders.  The process for issuing a Notice To Comply is described in the first extract from the Fair Trading manual Strata Living (below)

A Notice To Comply must be issued on the prescribed form and has to be issued by the strata manager or by the committee via a strata committee meeting (with agenda and minutes) as per the instruction on the form.

If the NTC is ignored, you can then apply for a penalty (fine) for the breach of a by-law. This step does not require mediation (see extract 2 from Fair Trading’s Strata Living below)

If you go for Orders, you are asking NCAT to order the owner to abide by the by-law.  This does require mediation first but the fines for disobeying the order are potentially much higher.

The “quick and dirty” solution is a Notice to Comply – the threat of a fine may be enough to focus the resident’s mind.  

The longer but more serious process is Orders (something you might consider later if a fine doesn’t work) and that requires Mediation at Fair Trading.

However, you can organise your own internal mediation to try to preempt going down the official channels.  It all depends of the seriousness of the issue and the disposition of the parties involved.

From Fair Trading’s booklet Strata Living

Breaching the by-laws
If a resident breaches a by-law, the strata committee can first contact the resident to advise of the breach, and ask that they stop the conduct that is causing the breach.
If this is unsuccessful, the owners corporation may issue the person responsible for the breach with a Notice to comply with a by-law. If they have the delegated authority, a strata managing agent may also issue a notice to comply.
If there is a breach after the notice has been issued, the owners corporation may apply to the Tribunal to impose a penalty, after resolving to do so at a general or strata committee meeting.
If the Tribunal has already fined the owner or occupier within the last 12 months for a breach of the same by-law, the penalty imposed by the
Tribunal can double to a maximum of $2,200. In this case, the owners corporation does not have to issue another notice to comply before applying to the Tribunal to impose the fine 

 

Lot owners or the owners corporation can lodge certain disputes directly with the Tribunal without needing mediation first. These include matters seeking an order:
• to appoint or require the appointment of a strata managing agent
• allocating unit entitlements
• for access to a lot by the owners corporation to inspect or repair common property
• seeking records from a former strata managing agent to be provided to an owners corporation
• for inspection of records
• imposing fines, such as for a by-law breach.

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[Jimmy-T]

If you are seeking a fine following failure to respect a Notice To Comply, mediation is not required.

The Notice To Comply must be on the prescribed form. Also, unless it was issued by the strata manager, copies of the agenda and minutes of the meeting at which issuing the Notice To Comply must be presented.

However, if you are seeking orders, the NCAT application form is crystal clear (my emphasis in bold):

Evidence of attempted mediation must be provided for certain strata applications … You must apply for mediation with NSW Fair Trading before lodging an application with NCAT. 

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[Jimmy-T]

Just to belatedly add my two cents worth, this is what it says on the NCAT application form:

At the hearing, you will need to provide evidence to support your application. The type of information and documents you need to provide to NCAT will depend on the orders you are seeking.

Refer to the list of orders attached to this form for the information required. These documents will be provided to the other party.

If they are not included with your application, you will have to bring copies to the hearing for the other party. You should not provide any information you do not want disclosed to the other party.

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[Jimmy-T]

You also need to choose a pets by-law otherwise Option A –  the owner of a pet only needs to notify the committee that they have an animal –  will apply. See section 5, below.

You could make that part of the same by-law, as in:

THAT The Owners Strata Plan No.xxxxxx (the “Owners Corporation”) by SPECIAL RESOLUTION, pursuant to Section 141 of the Strata Schemes Management Act 2015, adopts the Schedule 3 Model By-Laws in the 2016 Strata Scheme Management Regulations, including Option X of item 5 related to pets.

If you think disagreement on which pet option to choose might scupper the whole renewal, separate the issues with two by-laws.

1. THAT The Owners Strata Plan No.xxxxxx (the “Owners Corporation”) by SPECIAL RESOLUTION, pursuant to Section 141 of the Strata Schemes Management Act 2015, adopts the Schedule 3 Model By-Laws in the 2016 Strata Scheme Management Regulations, subject to adoption of by-law 5.

2. THAT The Owners Strata Plan No.xxxxxx (the “Owners Corporation”) by SPECIAL RESOLUTION, adopts Option X of by-law 5, related to pets,  in the Schedule 3 Model By-Laws in the 2016 Strata Scheme Management Regulations.

Again, bear in mind that Option A is the default position and it will apply if you don’t choose option B.

Also, if you have a strata manager, you should run this past them to make sure it’s OK.

5   Keeping of animals

Note.

 Select option A or B. If no option is selected, option A will apply.

 

Option A

(1)  An owner or occupier of a lot may keep an animal on the lot, if the owner or occupier gives the owners corporation written notice that it is being kept on the lot.

(2)  The notice must be given not later than 14 days after the animal commences to be kept on the lot.

(3)  If an owner or occupier of a lot keeps an animal on the lot, the owner or occupier must:

(a)  keep the animal within the lot, and

(b)  supervise the animal when it is on the common property, and

(c)  take any action that is necessary to clean all areas of the lot or the common property that are soiled by the animal.

 

Option B

(1)  An owner or occupier of a lot may keep an animal on the lot or the common property with the written approval of the owners corporation.

(2)  The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property and must give an owner or occupier written reasons for any refusal to grant approval.

(3)  If an owner or occupier of a lot keeps an animal on the lot, the owner or occupier must:

(a)  keep the animal within the lot, and

(b)  supervise the animal when it is on the common property, and

(c)  take any action that is necessary to clean all areas of the lot or the common property that are soiled by the animal.

(4)  An owner or occupier of a lot who keeps an assistance animal on the lot must, if required to do so by the owners corporation, provide evidence to the owners corporation demonstrating that the animal is an assistance animal as referred to in section 9 of the Disability Discrimination Act 1992 of the Commonwealth.

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[Jimmy-T]

It’s not just that.  Under section 258 the owner must notify the Owners Corp of a change of tenant (see below).

And there is another more cost-effective way of tracing the owner.  If there is a genuine debt against the lot (for non-payment of levies, for instance) you can employ a strata debt collection service with all reasonable charges involved in collecting the debt payable by the debtor.  Debt collection agencies have all the means of tracing people at their disposal.  

This is what I would be telling the tenants – your landlords are about to be charged thousands of dollars in debt collection fees and strata fines if they don’t contact the strata manager immediately.

258 Tenancy notice to be given to owners corporation of leases or subleases

 (1) If a lot is leased, the lessor must give notice of the lease, in accordance with this section, to the owners corporation not later than 14 days after the commencement of the lease

Maximum penalty: 5 penalty units

(2) If a lot is subleased, the sub-lessor must give notice of the sublease, in accordance with this section, to the owners corporation not later than 14 days after the commencement of the sublease

Maximum penalty: 5 penalty units

(3) If a lease or sublease of a lot is assigned, the assignor must give notice of the assignment, in accordance with this section, to the owners corporation not later than 14 days after the execution of the assignment

Maximum penalty: 5 penalty units.

(4) The notice must be in writing and specify:

(a) the name of the tenant and an address for service of the tenant, and

b) the date of commencement or assignment of the lease or sublease, as the case requires, and

(c) the name of any agent acting for the owner in respect of the lease or sublease.

Note : An address for service of notices may be an Australian postal address or other electronic address, including an email address (see section 261).

(5) This section does not apply to the lease of a lot by the lessor of a strata leasehold scheme to a lessee who is the owner of a lot.

(6) A notice under this section is to be given to the original owner if it is given during the initial period of the owners corporation for a strata scheme.

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[Jimmy-T]

@Winston said:
(2) Notice is to be given by displaying the notice on the notice board maintained by the owners corporation or in accordance with section 263.

While (2) states a notice is to be displayed on the Notice board, when I looked at Section 263 (below) I interpret that notices for the Lot Owner are to be served to places, which does NOT, include a Notice board. 

Have I interpreted this incorrectly?  Technical point – but an important point, that I would appreciate other people’s interpretation.

The keyword here is “or” (my emphasis above). The Act is saying if you don’t have a noticeboard established by a by-law then move to Section 263.

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[Jimmy-T]

@lynette bennett said:
Is it possible to have all EC Meetings by schedule, thus making the tenant representative quite redundant.  

It’s a shame that you want to exclude tenants completely.  They represent more than half the residents in strata and if it weren’t for people prepared to or compelled to pay rent, half the apartment blocks in Sydney would not exist.

Involving people in decision making is a tried and tested method of making them feel responsible for their environment and community.  Treated them like second-class citizens is an equally proven method of creating disaffection and resentment.

And, as Lady P points out, it’s not as if they can actually change anything except, perhaps, by the power of persuasion.

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[Jimmy-T]

@Dudley said:
I guess it is a matter for the strata to rectify.

I am making my umpteenth plea for posters to this site – especially regular posters – to stop using the phrase “the strata”.

What do you mean?  The Owners Corporation?  The strata manager? The strata committee? The building manager?

A lot of readers of this website are newcomers to strata – or, at the very least, to strata disputes.  

It is incumbent on the rest of us to use terms that are clear and accurate – not just a lazy phrase that is easier to type.

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[Jimmy-T]

The fundamental problem here is if you say the  gate  latch or hinge failed and tenants were observe misusing it and that led to further damage, it’s hard to blame them without the owners corp accepting some responsibility.

There is no limit on an owners corp’s responsibility for maintaining and repairing common property.  You could argue that the lot owner had a responsibility too, but the whole thing would be so complicated that the owners corp would be better off paying for the gate repair and taking the opportunity to send out a warning to all owners that they have a duty to report problems with common property on their lots.

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[Jimmy-T]

Put a motion up to replace the old by-laws with the new ones (and list them both, just to be sure everyone has the opportunity to see what’s happening).

You might also read the new by-laws aloud at the meeting just so you can say you followed correct procedure

However, you will have choose which of the pet options you prefer and you could either do that in advance or have a separate discussion and vote on that.

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[Jimmy-T]

You get this a lot – usually it’s people who don’t want anyone else to do the work but then demand that they get paid for it as they view themselves as somehow indispensable.

It sounds like they are asking to be paid as a caretaker and, if so, you would want them to have a contract that listed their duties, the minimum number of hours they would work in a week, being available to owners and to carry their own public liability insurance – and, not least, conditions of employment that would include liability for their actions and grounds for dismissal.

Apart from that, strata committee member can be paid for being on the committee – but only retrospectively. That means a motion goes to the AGM to pay them for work done in the previous year which, at the very least, means owners have had a chance to see what they bring to the building.

Based on his cack-handed and bullying approach to your issue, I would tell him to go and spend a week getting some strata management training and then come back and ask for a job.

It’s bad enough having an ignorant know-all and a bully on your committee … you shouldn’t have to pay them too.

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