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The lateral transmission of noise is not as obvious as the vertical but it can be an issue, especially if all the townhouses are on the same concrete slab.
Also, noise issues are as much behavioural as they are structural. E.g. anyone who wants a timber or tile floor and also wants their kids to run around on it, or plant a giant sub-woofer speaker on it, is asking for trouble.
That said, there are enough protections under the “peaceful enjoyment” provisions of strata law and by-laws that no owners corp should be unduly concerned about a properly insulated and installed hard floor – just as the owner should not be surprised if they are ordered to carpet over a cheaply installed hard floor and/or stop jumping around on it.
The strata committee is being over-cautious in my opinion and they should be made aware that the owner can take them to the Tribunal and seek section 232 orders compelling them to permit the flooring.
It would be better for them to get a binding agreement that the floor will be replaced if it proves noisy and that the stairs will always be carpeted. By the way, the stairs are a different issue because they are probably attached to a wall and that is a very different set of acoustic issues.
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@Elmer said:
Is there a good way to find a legal company who can give me an opinion?
Most specialist strata firms will give you a rough idea of your chances of success and the probable cost buy they might not provide legal advice per se.
Our sponsors Sachs Gerace Broome will either do that or point you in the direction of a good strata lawyer in Victoria.
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@proudsceptic said:
If no response is received by the given date then you will have done all that you can do under the circumstances, and you should be able to undertake the maintenance and repairs.
These steps may take a while …. but it is worth doing everything correctly or you can find yourself in a whole heap of trouble.
I think the next step is to get orders from NCAT allowing you to access the property in a non-emergency situation. The law seems to be a bit ambivalent on this but most strata managers I know would err on the side of safety and get the orders under section 122 (4) (below) even though section 122 (2) seems to imply that an NCAT order is not required.
I would think that telling the the owner that you will be able to do this and that any damage to their door or locks in gaining permitted access will be to their cost and that they could be fined $1100 for preventing access might focus their minds.
122 Power of owners corporation to enter property in order to carry out work
(1) An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel of the scheme for the purpose of carrying out the following work:(a) work required or authorised to be carried out by the owners corporation in accordance with this Act (including work relating to window safety devices and rectification work carried out under Part 11),
(b) work required to be carried out by the owners corporation by a notice given to it by a public authority,
(c) work required or authorised to be carried out by the owners corporation by an order under this Act.(2) An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel for the purpose of determining whether any work is required to be carried out by the owners corporation in accordance with this Act.
(3) In an emergency, the owners corporation may enter any part of the parcel for those purposes at any time.
(4) In a case that is not an emergency, the owners corporation may enter any part of the parcel for those purposes with the consent of any occupier of that part of the parcel or, if the occupier does not consent, in accordance with an order of the Tribunal under this Division.
(5) A person must not obstruct or hinder an owners corporation in the exercise of its functions under this section.
Maximum penalty: 5 penalty units.
(6) An owners corporation is liable for any damage to a lot or any of its contents caused by or arising out of the carrying out of any work, or the exercise of a power of entry, referred to in this section unless the damage arose because the owners corporation was obstructed or hindered.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.
@Digby said:
The agent can’t arrange special levy without the consent of the major stake holders of the scheme. Remember the agent works for you not the other way round.
Major stake holders? A special levy has to be approved by a majority of owners voting in person or by proxy at a properly constituted general meeting.
If nobody in the scheme has the desire or the gumption to organise an AGM then someone should apply to NCAT for the statutory appointment of a strata manager.
Otherwise, strata managers can only be appointed at a general meeting. This strata scheme is a mess and a group of owners needs to get together and acquaint themselves with strata law and the way things work. Click here to download the Fair Trading handbook.
Also, as Digby suggests, get a competent strata professional to help you sort things out.
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@proudsceptic said:
Positioning air-conditioners or other climbable objects on a balcony or deck close to a balustrade should be avoided or made non-climbable as these can be used as a foothold for children to climb on. Similar to the pool safety requirements, it is recommended that a non-climbable arc of 900mm be maintained outwards from the top of a balustrade.
Does anyone know of any legislation that says objects (like planters) must not be placed on balconies in such a way that they render the balustrade climbable? Given the current campaign on childproof windows, this would have to be the logical next step.
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I would just point out that, while all this advice is valid and correct, nobody has actually complained about the aircon.
I like to think I am a good strata citizen but I don’t know if I would be confessing my sins to the strata committee when I had just found out I’d done something wrong and no one had complained.
Chill out, folks.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.
@Chatterbox said:
Just one more question when do you use a majority vote versus a poll vote? I would imagine that the penthouse owners would always insist on a poll vote so they benefit in say each motion that is put forward at an AGM?You are absolutely right. You can use a show of hands but anyone can call for a poll vote at any point before or after a regular vote is taken.
Also, there are certain issues, such as special resolutions that must always be decided by poll votes (and have to be flagged on the agenda as such).
Finally, one piece of website etiquette – please don’t click the quote mark when you just want to reply. We don’t need to read everyone’s submissions twice. Use the quote button when you want to respond to a specific point – and edit out everything else that’s repeated except for the relevant part.
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I have done some (minor) research on the question of “acquiescence” and found this: The Owners Strata Plan No 6534 v El Khouri [2015] NSWCATCD 145 (4 December 2015)
It mentions “acquiescence” and the argument is accepted. However, as far as I know there is no concept of precedent in Tribunal cases. Each is supposed to be judged on its merit. So this is a Member in an appeal, agreeing with a Member’s decision IN THIS CASE.
So, acquiesence could be argued but it is not a lock-down certainty. For instance, if no one knew the air con was there, you could hardly argue that they accepted it.
It’s case by case and in this case, it sounds like the owner is getting worked up over nothing.
.
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@proudsceptic said:
To add to Jimmy T’s comment …. if things ever became ‘nasty’ (which I hope that they won’t do) then your friend can always claim that the EC, in failing to act to serve a Notice to Comply for a period of 7 to 8 years, has Acquiesced to the owner’s air conditioner.Not sure about this, PS. I have never come across “acquiescence” in strata law. But that doesn’t mean an adjudicator wouldn’t accept that.
My advice: Switch on the air con, cool down, let it go.
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@mrsireland said:
But the Tribunal will take ages to get them fined or whatever. I don’t want to have to deal with this for another 3 months.Firstly, the whole NCAT procedures should be a lot faster now that the paper adjudication has been removed and you go straight to a hearing.
Secondly, as suggested above, get the landlord breached too as they are responsible for the behaviour of their tenants. Also, in reality, it’s only the landlord who can evict people – the Owners Corp can only apply pressure to make this happen.
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It’s a genuine error and the way the system works in strata is that if you breach a by-law, you get a Notice To Comply (with the by-laws). You then choose whether or not to do that. Any reasonable person would do so and that is the end of it.
The only subsequent action may be if there is damage to common property and she would just pay for the repairs.
There are no StrataKops and there is no penalty for an honest mistake unless she refuses to remedy it when asked to do so.
Her only real issue is if she wants to keep the air-con and the strata committee or owners corp don’t want her to.
Personally, I would wait for someone to complain and then deal with it as amicably and efficiently as possible.
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And just to add another complication, if it’s the Owners Corp that’s making a profit, that has a tax implication that may not have been addressed.
I would be putting a motion to the strata committee that the whole question of the provision of gas be examined, including:
- who owns the tank?
- who profits from the re-sale of gas?
- is this legal
- is there a tax implication?
- what are the options for all owners and tenants to have their gas bills reduced?
If the strata committee refuses to do this, tell them you will be seeking orders at NCAT compelling them to do so.
It may be that the facilities manager has a cost relationship with the strata committee and you are subsidising them (and everyone else in the block). Definitely worth checking out.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.
@kaindub said:
I assume that the photographer is a commercial operator, and it his right to carry on such business (operating a drone for photography)Is it his right? Or does he require a licence and are there restrictions on how and when he (or she) uses the drone?
The website for a commercial drone training school lays out the new laws on drones (or RPAs to give them their proper title) and they are not as simple as a “right”.
Very Small RPAs (under 2 kg) – Regulations effective 29th September 2016
The Federal Government has recently passed legislation which will allow a person to operate a very small RPA (that is, one weighing less than 2 kg) without certification, if it is being operated in standard RPA operating conditions. This will be known as an excluded aircraft.
Standard RPA operating conditions means that the RPA must be operated:
- within visual line of sight
- below 400 ft AGL
- during the day
- more than 30 m away from anyone who is not directly associated with the operation (people being filmed are not considered to be directly associated with the RPA’s operation)
It may NOT be operated:
- over a populous area
- within 3 nautical miles of the movement area of a controlled aerodrome
- in a prohibited area
- in a restricted area that is classified as RA3
- in a restricted area that is classified as RA2 or RA1 otherwise than in accordance with regulation 101.065
- over an area where a fire, police or other public safety or emergency operation is being conducted without the approval of a person in charge of the operation
What does this translate to? Real Estate photographers will usually NOT be able to conform with ALL these conditions and will therefore require a UAV Operator Certificate (UOC) which is the CASA certificate to operate legally.
If you are not making any commercial gain from your flying, then you may fly your UAV without requiring certification (please note however that “commercial gain” can include flights for advertising purposes or even uploading videos to YouTube – there does not have to be a direct payment involved). The following restrictions apply for uncertified flying:
- Below 400 ft (120 m)
- In uncontrolled (Class G) airspace
- More than 3 nm (5.5 km) from an aerodrome or helipad
- More than 30 m away from other people
- Not in a Populous Area
- Within Visual Line of Sight (VLOS)
Commercial Flight
Any flights for commercial gain require certification of both the pilot (or UAV Controller) flying the actual drone, and the business which is conducting the operation. The pilot must have a UAV Controller’s Certificate (formerly called Remote Pilot Certificate) and the business must have a UAV Operator’s Certificate (or UOC).
Privacy issues are also complicated, especially as there is no “right” to privacy under Australian law.
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@Willie said:
A few queries regarding the new NSW legislation, am I correct;- A single Strata Committee member can convene an EGM?
Only if that member is the secretary. Otherwise it has to be a majority decision of the strata committee or at the request of 25 percent of owners.
Only 7 days’ notice is required?
Yes
In regard to a Special Resolution unless more than 25% of owners vote against the resolution it will be carried.
It’s all about the numbers (and unit entitlements) of people actually voting at the meeting either in person or by proxy.
Let’s say you have 20 units in the block. 10 people turn up for the meeting or provide proxies. A special resolution by-law vote is taken and three votes are cast against it – that means the by-law fails (provided their unit entitlements add up to more than 25 percent of those voting).
Two things to look out for are the UEs which must be calculated for special resolutions and by-laws. And whether or not owners are entitled to vote. For instance, if they haven’t paid their levies, they can’t vote (see below).
My concern is the 7 day notice makes it very difficult for an owner who did not agree with the proposed changes to put a case to owners not living onsite or involved in the Strata Committee.
Don’t forget that the new anti-proxy farming laws mean that each owner can only hold a maximum of 5 percent of the votes (or one vote in schemes less than 20 lots) as proxies.
23 (8) Voting rights cannot be exercised if contributions not paid
A vote at a general meeting (other than a vote on a motion requiring a unanimous resolution) by an owner of a lot or a person with a priority vote in respect of the lot 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.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.
Ooooh. South Australia? That’s new territory for most Flatchatters. However, the answer to this question may help: Is the aircon common property? In othe words, does the strata corporation (body corporate) maintain and repair the aircon unit or does it belong to the unit owner. If it’s theirs, then there is no question, if it’s yours it gets a bit murky.
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