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More than half the strata schemes in NSW are self-managed. Just arm yourselves with the available literature and find out what your obligations are regarding meetings etc.
The Strata Community Australia free online course for strata committees is offline at the moment while they bring it up to speed with the new strata laws that came in last year. But it should be back soon.
This page on this website has links to lots of valuable information, including the Strata Act and Regulations and there’s plenty of other information you can use.
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You need two lots of permissions:
First you will need the permission of the owners corp (because it’s their property) and you will also need the permission of the local council (who will want to see the OC permission).
You will have to get a by-law passed which should pass responsibility for all affected common property to you.
You will have to pay something to the OC. At the VERY LEAST it will be the difference in the value of your property with and without the extension, minus the cost of the work.
You should probably pay more than that to make it worth your neighbours while. They are under no obligation to allow you to do this.
You should cover all legal costs, costs of the by-law etc etc.
You should also offer to apply to NCAT to adjust the Unit Entitlements so that you are paying more and your neighbours are paying a bit less.
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@CMartin said:
Thank so lady Penelope for your reply. I have spoken to the strata manager who has advised that the residential and retail space are under different by laws so neither by laws apply to each other and therefore no one is breaching these as they don’t apply.If they are part of the same strata scheme then they come under the same by-laws, even though they may have by-laws specific to them. If they are separate strata schemes (unlikely)there is still relief available under section 233 of the strata Act.
Apparently the DA has approved the operating and sound levels and because the council has been out and deemed there are no sound breaches they are not breaching the lease.
Your local council will have noise laws that more or less match EPA sound nuisance laws. Have a look here for more specifics. A DA to run a gym does not give them the right to make excessive noise in prohibited hours. The coucil has piut this in the “too hard” basket. You need to get it back on their desks.
The EC in my view is very self interested there are certain things they take up but one member has clearly text the group to say our issue is only affecting one resident.
This is the most pathetic “do nothing” argument ever used in strata. The OC has a duty to look after all residents – including lone sufferers – and if there is a conflict, they should support the one who’s not breaking the law against the one who is.
I feel the EC and strata manager and the council are all negligent in taking this seriously and they all seem to think we should have to live with it or live somewhere else. Thanks for your comments, I guess legal advice is our next step.
You could perhaps tell them you are taking a Section 232 against them at NCAT and that you will apply to have all legal costs paid to you and you will make sure that all the other owners who will have to pay a special levy to cover your costs know that it’s because their committee refused to do the right and reasonable thing.
Also, you have the option of taking noise abatement orders against the gym and, given that your strata committee sounds like it has taken sides, this may be your best option. Have a look at the above link to the EPA web page.
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@Topsheila said:Can you tell me whether this person who is always non-financial is allowed to be on the strata committee? How is she allowed to vote? I cannot find this information anywhere but I find it very odd that everyone knows she is not financial yet they go along with her being elected every year.
Well, all the information you need is below. This person’s elections and all their votes are invalid. However, unless you can impress upon the committee that this is the case, all the decisions, including the election, will be considered valid as they were done in good faith.
You need to inform the committee and the strata manager that they have been conducting meetings in a non-compliant manner and they need to cease until they sort things out in accordance with the Act.
By the way, it sounds like you have a self-interested chair and incompetent manager. If I were you I’d be be talking to another strata manager ASAP about them taking over as a compulsory appointment before all the big ticket budget items are approved.
Strata Schemes Management Act 2015
Section 32: Persons who are not eligible to be appointed or elected to strata committee
(2) An owner of a lot in a strata scheme who was an unfinancial owner at the date notice was given of the meeting at which the election of a strata committee is to be held and who did not pay the amounts owing by the owner before the meeting is not eligible for appointment or election to the strata committee.Schedule 1 Meeting procedures of owners corporation
Part 2 Agendas, nominations and notices
8 Matters that must be included in notice of general meetings
(1) The following matters must be included in, or accompany, the notice given of all general meetings:
(f) a statement that an unfinancial owner … cannot vote at a meeting on a motion … unless payment has been made before the meeting of all
contributions levied on the owner, and any other amounts recoverable from the owner, in relation to the lot.Part 4 Voting rights and voting procedures
Division 1 General rights to vote23 Persons entitled to vote at general meetings
(8) Voting rights cannot be exercised if contributions not paid
A vote at a general meeting … does not count if the owner of the lot was an unfinancial owner at the date notice of the meeting was given and did not pay the amounts owing before the meeting.Schedule 2 Meeting procedures of strata committees
Part 3 Meeting procedure
9 Decisions at meetings(4) Voting rights cannot be exercised if contributions not paid
A member of the strata committee is not entitled to vote on any motion put or proposed to be put to the strata committee if the member was, or was nominated as a member by a member who was, an unfinancial owner of a lot in the strata scheme at the date notice of the meeting was given and the amounts owed by the unfinancial owner were not paid before the meeting.And this is your first step towards putting things right.
Section 24: Order invalidating resolution of owners corporation
(1) The Tribunal may, on application by an owner or first mortgagee of a lot in a strata scheme, make an order invalidating any resolution of, or election held by, the persons present at a meeting of the owners corporation if the Tribunal considers that the provisions of this Act or the regulations have not been complied with in relation to the meeting.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.
I think the fist stage is to ask them which of the new strata laws says you can’t put your bike in a store room.
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There is one other aspect to this which has been alluded to in other posts and that is largely behavioural.
Putting some sort of insulation under the appliances in the bedroom should make a difference, as would taking their shoes off when they come home. This may seem alien to some but it’s standard practice in Asian homes.
A mediation with your neighbours would allow you canvas the issues with them before you go down the road of legal action, and you can ask your strata committee to organise this for you.
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@Wendy said:
We first brought this matter to the building manager, he told us nothing he could do. Then we wrote to strata manager, she said this is not a strata issue as long as the flooring above complies with the bylaws.Both of these “experts” are wrong, at least to some extent. Section 153 (below) says owners are not allowed to create a nuisance. Now, that is not just something that is annoying – it’s something that is injurious to your health.
You could put up a pretty compelling argument that being kept awake at night and disturbed during the day is injurious to your health.
There’s also a very good chance that you have in your by-laws a variation on the one that says residents can’t disturb other owners peaceful enjoyment of their lot.
Also, you have to consider the possibility that the by-law on flooring that you have in place is inadequate or defective, or that the flooring was installed in a way that didn’t actually meet the requirements of the by-law.
So for anyone to say that you can’t do anything if the neighbours have fulfilled the requirements of the by-law, misses the point. If the insulation is inadequate, for whatever reason, then the by-law is irrelevant.
However, if your upstairs neighbours have been misled by the Owners Corp by an inadequte by-law, they could have a claim against the owners corp. The OC has a “duty of care” to maintain common property (the slab) and this sounds like a failure to do so.
To be fair, this is not as clear-cut as if your upstairs neighbours had ignored the by-law. And if you want to pursue it you would be well-advised to get professional legal advice form an expert strata lawyer. It could be a tough fight
But I don’t think you (or indeed your upstairs neighbours) should have to suffer because either the by-law is flawed or the installation was not done properly.
Try to keep them onside as they have tried to do the right thing and a united front is more likely to succeed against an OC, building manager and strata manager who are determined to take the easy way out at your cost.
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) …Model by-laws: 6 Noise*
An owner or occupier of a lot, or any invitee of an owner or occupier of a lot, must not create any noise on a lot or the common property likely to interfere with the peaceful enjoyment of the owner or occupier of another lot or of any person lawfully using common property.* Your by-laws may be different
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I think the legal costs element in strata insurance is there in case someone sues the Owners Corp and costs are awarded against it, not so that you can fight a battle that you choose to take on.
But I may be wrong. It depends on the specific wording of your policy. In any case, you would be well advised to check with your insurer before ambarking on legal action.
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Look, this meeting is illegal. Notice has been given under the rules for a committee meeting, not an AGM.
There are certain basic provisions in the law that must be observed. The first is that written notice of a general meeting (including the AGM) must be given to each owner at least seven days before the meeting (Strata Schemes Management Act 2015, Section 7 [2]).
The notice must include minutes of the previous general meeting. (SSMA 2015, Section 8 [2])
It looks very much like neither of these things have happened.
If you can hold your nerve until the meeting is held properly, under the statutory notice, you could create absolute chaos and make the chairman look very stupid.
For instance, proxy votes are limited to five per cent of the total ownership (or one, in schemes under 20 lots).
And don’t forget that co-owners can’t self nominate or be nominated by people who are standing for election. And people who self-nominate can’t also nominate other owners.
But I would just wait to see if the meeting goes ahead to play that card. You might also check that all the people voting are “financial” as their votes don’t count and they can’t nominate.
You could end up as the only person on the committee if some of them are co-owners who self-nominate.
Meanwhile, you might inform the strata manager that if the meeting goes ahead you reserve the right to challenge the election and any decisions made at NCAT and explore the possibility of a statutory appointment of a strata manager because of serious dysfunction.
A more critical question, however, is whether or not you have the stomach for the bitter and nasty fight that will ensue (and nobody could blame you for walking away).
But consider writing to other owners to tell them that it’s time for a change at the top. The meeting called for Monday is illegal (and why) and any decisions they make at that meeting could result in individual members of the committee facing personal liability if they chose to ignore your advice.
Tell them the chairman either doesn’t know what he’s doing – or does but is ignoring the law. Meanwhile they are losing money and they are about to get a special levy for a bill for work done to one owner’s property.
Don’t worry about the predictable threats of suing for defamation. Strata owners are allowed a lot of leeway to have frank and free discussions in the running of the building, provided their comments are made in good faith and not motivated by malice.
I would also tell the strata manager that they need to start playing by the rules or they could face being sacked and/or reported to Fair Trading.
Clearly, you really need to get some allies in the building who will support you. And the way to do that is to point out how the law is being broken and how everyone else is paying for it.
Meanwhile, I would still talk to a different strata manager about coming in as a compulsory appointment. They should be able to give you some good advice.
Show your neighbours this response – it often sharpens peoples focus when they realise that there are people out here who know how things should be done.
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@c_mcph said:
Sorry to sound like I was telling you how to do your job but I see leaving out council obligations as dropping the ball if you write an article about options for handling Airbnb. It’s not just my opinion that this is a council responsibility.I am going to say this once more and then I’m shutting this down – and it’s not because I want to end the discussion but because of your insulting choice of words and refusal to respond to what I am saying rather than what you want to hear.
Trust me, if I wanted to limit your “free speech”, all your posts would have already gone.
I explained previously that my article was about options that were being discussed. As far as I know, the idea of somehow persuading councils to do what, I agree, is their legal duty has not been discussed in any significant way.
Why? Probably because it’s already not working and the definition of stupidity is doing the same thing and expecting a different result.
How do I know this? Because I am in regular contact with the three government ministers at the heart of the new legislation.
I am also certain of this because councils have made it clear to parliament that they are not interested in policing this out-of-control cash grab by apartment residents.
I don’t dispute that councils have a duty and I don’t dispute that they have failed to exercise it. I have already explained the probable reason why that is the case.
If you can’t accept the facts, that’s really not my problem, but I would be “dropping the ball” if I pretended increased council activity was a real option. Maybe it should be, but it’s not.
You can quote all the legislation you like, but look around you. Name one instance of someone being pinged for running illegal short-term lets in Sydney in the past year.
Also, only a couple of councils made submissions to the Coure inquiry. One was from the Byron Bay area that has its own problems, the other was from City of Sydney, washing their hands of the whole airbnb problem and handing it back to the government.
Now, THAT is dropping the ball and if you have a problem with that, take it up with Clover Moore and her hipster policy wonks.
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@c_mcph said:
(Perhaps a bad example cos they haven’t licenced Uber)Yes they have – or at least they have allowed it and are charging them extra Road Tax for doing so.
Read my column in the Herald tomorrow – it explains the difference between Uber and Airbnb.
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@c_mcph said:
“Because it is not, so far as I know, being seriously discussed and that’s because councils have made it clear they aren’t interested.”If it’s the right way to handle the issue then it should be discussed and it is irrelevant to me as a taxpayer that the councils are stating that they are not interested.
Perhaps, but it isn’t being discussed, which is my point.
Councils are the right people to manage this and everyone, especially journalists, should make an effort to highlight that.
That is your opinion, and definitely not mine, if only because they have failed spectacularly to manage this issue to date.
Oh, and thanks for telling me how to do my job.
Executive committees are not capable or willing to own this responsibility and the outcome if they are will be very bad in many ways.
Again this is only your opinion and a deeply flawed one at that. Several chairs of large buildings have just put over $60,000 into a fighting fund to combat the the one-sided publicity trotted out by Airbnb.
How can you then say they wouldn’t be interested in policing this in their own buildings, since that is exactly what they are campaigning for?
The scenario you describe would undoubtedly suit you but you can’t extrapolate your personal and (by your own admission) biased preference into a policy that would work for everyone.
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@c_mcph said:
I’m still left with a couple of questions about the way you and other journalists write about Airbnb. Firstly, if you believe that Council ownership of short-term rental management is ‘makes a lot of sense’ then why did you not list it as one of the options in your article explaining the down sides it brings? You gave 5 very detailed options but left out a major one.Because is is not, so far as I know, being seriously discussed and that’s because councils have made it clear they aren’t interested.
Secondly, I understand why Airbnb continually represent themselves as ‘mum and dad making some extra cash’, by why do journalist not talk about the people buying units for Airbnb exclusively?
I do and I have, somewhere in the 25 articles I have written about Airbnb and which they have complained about. Other journalists may have been seduced by the whole free money myth but I can’t speak for them.
Regarding your other comments, I have heard anecdotally from building managers that 19 out of 20 airbnb rentals are absolutely fine but the 20th will be an absolute horror-show. That one bad apple can have a very deleterious effect on the rest of the strata barrel.
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What you’re saying makes a lot of sense … in theory.
But you have to ask yourself why, despite having the largest number of apartment buildings in the country in their bailiwick, City of Sydney Council proposed the policy that could soon be the backbone of holiday letting legislation: that holiday lets be “complying developments” .
The simple answer is that they – and all the other councils that currently turn a blind eye to illegal holiday lets – don’t have the resources to police any licensing that might be brought in. And because of the nature of the beast – too many people operating outside the law at the same time – the revenue is unlikely to cover the additional cost.
Airbnb hosts operate outside planning laws in this state (and many others), just as Uber did with taxi licensing laws. The explosion of online holiday letting – something like 23,000 listings in Sydney at the moment – has caught the authorities with their pants down.
So we have a bunch of Airbnb hosts that have been given “permission” by social media to breach planning and strata by-laws. Airbnb pays lip service to their hosts being compliant with local laws but they do absolutely zero when they get evidence that planning laws or by-laws have been breached, except to dob in the complainer to the miscreant.
So, bring in a licensing system and you will have more people breaching than paying the licence. In short, the bigger the problem, the less money you will have to fund counter measures.
Also, the usage of online holiday letting agencies is incredibly localised around the inner city, beach and harbourside suburbs. This means that the majority of NSW MPs won’t give a hoot, because it doesn’t affect them. However, local councils could fear that any major push against holiday letting could be a big vote loser if they are expected to disrupt the mythical hug-fest that Airbnb and its ilk purport to be.
In other words, who wants to be the nasty guy taking the free money from “ordinary people” who are just paying off their student loans, saving up so they can have children or buy Auntie Mabel a new wooden leg.
So while what you are suggesting makes eminent sense, it represents something that could cost councils a lot of money and votes. Let’s not forget that it was the threat of massive fines to illegal B&Bs in the inner west that prompted the government inquiry in the first place.
That’s why many councils have quietly imposed a moratorium on pursuing illegal holiday lets. What happened to those million-dollar fines? When was the last time you heard of someone being breached for running holiday lets in a residential zone? It’s not like they are hard to find.
Councils don’t want to have a bar of this because it’s too hard. There is a compelling argument for leaving things the way they are and letting councils enforce their own planning regulations. But they don’t want to and we can’t make them and that’s why I believe licensing isn’t even on the table.
The only truly effective way is for individual buildings to be able to choose for themselves and police it accordingly. After all, they will have to do that anyway under proposed legislation, so they may as well enforce their own rules rather than some cockamamie half-baked notion cooked up in Macquarie St to keep a bunch of American billionaires happy.
By the way, I think the government’s keenness to validate illegal beahviour by changing the laws to accommodate it could come back to bite them on the bum.
If enough people can ignore road traffic and planning laws, and strata by-laws, to get the law changed in their favour, how likely is it that owners corporations will start cutting off power and access keys on even less dubious grounds than the holiday let landlords used when they set up in the first place?
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