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@gusmich said:
I would go ahead with the work anyway. I doubt they have a leg to stand on in this case.I wouldn’t. You need the cooperation of your neighbours for major renovations, including access to common property parking for the builders.
And you lay yourself wide open to blame for every little crack and crevice in walls and ceilings, whether they were there before or not.
This committee clearly doesn’t undertand the law – why make it easy for them to hit back when you could make it all official through NCAT?
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As an owner, you are entitled to view the strata records. You are also entitled to commence action at Fair Trading and NCAT for fines to be issued against owners and tenants who breach strata law and by-laws.
Ask to view the records and then initiate proceedings at Fair Trading yourself. Clearly, there is no point in waiting for the strata manager to do it.
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Anyone can attend if invited by one of the participants. This is what the fair Trading website says:
It is important that all the relevant people involved in the dispute attend the session. Parties may bring a support person as well as a solicitor if you feel it is necessary and will assist the discussion.
However, the same website (CLICK HERE) also stresses the need for confidentiality, so turning up mob-handed or promoting it as a spectacle isn’t going to go down too well. That website has a lot of other valuable advice that makes it well worth a visit.
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The ceiling is common property so they have to repair it. Repainting should be covered by home contents insurance.
Suggest your strata manager and/or EC acquaint themselves with the Who’s Responsible … document prepared by the Department of Lands, Fair Trading and SCA.
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A compliance audit, as you call it, could be done by a strata manager or strata lawyer but it would not be cheap. I have never heard of anyone doing this as a job.
In any case, what is it that you hope to achieve?
If you have clear evidence of these serious breaches of the Act and failures of responsibilities, why don’t you just ask a strata manager to be prepared to be appointed as a statutory manager and then apply for that to NCAT?
Or just present the list of breaches to the strata manager and invite them to resign (with agreement not to pursue that matter any further) or face being reported to both Strata Community Australia and Fair Trading.
The main aim must surely be to get the strata scheme operating properly rather than indulging in a lengthy and expensive blame game. Your potential replacement strata manager may be happy to assist if they know they are going to get the job when all is done and dusted.
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I don’t think the time element comes into it unless the by-law hasn’t been registered within two years.
However, you have given permission for an extension based on specific details, such as the design of the extension and the payment based on the increased value of her apartment.
In the meantime, the values used to calculate the payment that should have been made have also changed.
I would be making it clear to the owner that she has, say, six months to apply for a DA for the plans exactly as agreed or you will be approaching NCAT to have the by-law revoked and she can start again.
I would also make it clear to her that if she applies for a DA on the basis of any design other than what was agreed, the Owners Corp will strongly oppose it at council (and probably win).
If she wants to radically change the design, she needs to start again with a new by-law (and an increased payment). And next time, put a sunset clause on the by-law so that it falls over if work isn’t started within a certain period.
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The ceiling is common property but the paint on it isn’t. Damage to the ceiling should be repaired by the Owners Corporation but if they can prove it was caused by the action of an owner or resident, then they could try to get compensation from them (good luck with that!).
Painting the ceiling where it has been damaged in effecting repairs is the OC’s responsibility but repainting because of damage caused by the original fault is not.
Cracks in the ceiling are an Owners Corp responsibility, regardless of when they happened. Again, good luck trying to prove the problem has been exacerbated by failure to report the problem.
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Hi “Mike”
I notice your email contact address is the office of a strata management firm, which makes me wonder why you are coming to a public forum for advice.
Even so, here it is – this is an insurance issue, not a strata issue and if you have problems with it you should take it up with the the insurance ombudsman.
We have no idea of the detail of your strata management contract (if, indeed, it exists) or the insurance coverage (ditto) so it would be wrong for us to comment.
Maybe you should ask one of your fellow strata managers for advice.
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You can always apply to NCAT for orders varying the way the payments are made made.
Under the current laws, it’s:
149 Order for variation of contributions levied or manner of payment of contributions
(1) An Adjudicator may make either or both of the following orders if the Adjudicator considers that any amount levied or proposed to be levied by way of contributions is inadequate or excessive or that the manner of payment of contributions is unreasonable:
(a) an order for payment of contributions of a different amount,
(b) an order for payment of contributions in a different manner.
(2) If an Adjudicator considers that the consent of an owner referred to in section 77 has been unreasonably refused, the Adjudicator may make an order for payment of a different amount of one or more contributions levied or proposed to be levied by the owners corporation.
(3) If a contribution which is the subject of an order under this section has been wholly or partly paid:
(a) an order to pay more has effect as if the owners corporation had decided to levy a contribution equal to the difference, and
(b) an order to pay less imposes a duty on the owners corporation to refund the difference.
(4) An application for an order under this section may be made only by the lessor of a leasehold strata scheme, an owners corporation, an owner or by a mortgagee in possession (whether in person or not).
Under the laws that come into force on November 30 it’s:
87 Orders varying contributions or payment methods
(1) The Tribunal may, on application, make either or both of the following orders if the Tribunal considers that any amount levied or proposed to be levied by way of contributions is inadequate or excessive or that the manner of payment of contributions is unreasonable:
(a) an order for payment of contributions of a different amount,
(b) an order for payment of contributions in a different manner.
(2) An application for an order may be made by the lessor of a leasehold strata scheme, an owners corporation, an owner or a mortgagee in possession.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.
@proudsceptic said:
… if the person in arrears settles his account at the Meeting then he will be able to vote on ALL of his Entitlements.But beware of Cheques, B Pay etc ….. they may be problematic. See here: https://www.lookupstrata.com.au/nsw-owner-unfinancial-levies/
Many strata managers and secretaries will refuse to accept any payment at the actual meeting unless it is in cash or by bank cheque. It is too easy for a delinquent owner to offer a cheque and then cancel it once the meeting has been held and theiir votes have been cast.
Some strata managers won’t clear debts until the money is in the OC’s bank account (especially if the late payer is the treasurer). If anyone has an issue with this, you can point out that the timing of the payment is their choice and they have had plenty of opportunity to put things right.
You should also make sure the multi-unit owner is being charged penalty interest.
And to add to ScotlandX’s comment, the multi-unit owner can only vote the Unit Entitlements of the properties whose debts have been cleared. If they do make a payment, it has to be directed to the account for a specific unit and they can then vote as the owner of that unit, and that unit alone.
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unless it’s a special resolution by-law, the EC can change it’s mind as it pleases. However, they have to justify their decision when challenged at NCAT and this would be seen as petulance, pure and simple.
The fact that you have gone to mediation is great as you can now move to the next step which would be to seek orders under section 140 (see below) at NCAT compelling them to approve the changes. I would also warn them that any further attempts to obstruct you will result in a claim for compensation for costs and an application to NCAT to have a strata manager appointed to take over the running of the scheme.
Go back to your original plan and get NCAT to force them to accept it.
140 Order relating to alterations and repairs to common property and other property
(1) An Adjudicator may order an owners corporation to consent to work proposed to be carried out by an owner if the Adjudicator considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following:
(a) alterations to common property directly affecting the owner’s lot,
(b) carrying out repairs to common property or any other property of the owners corporation directly affecting the owner’s lot.
(2) An Adjudicator may make an order approving of alterations or repairs already made by an owner to common property or any other property of an owners corporation directly affecting the owner’s lot if the Adjudicator considers that the owners corporation unreasonably refused its consent to the alteration or repairs.
(3) An order under subsection (2) is taken to be the consent of the owners corporation to the alterations or repairs concerned and may be expressed as having effect from a day specified in the order that occurred before the order was made.
(4) An Adjudicator may specify in an order under this section whether the owners corporation or the owner of the lot concerned has the ongoing responsibility for the repair and maintenance of any additional property arising out of an alteration or repair to common property approved under the order.
(5) If an order makes provision for the owner of a lot to have the ongoing responsibility for the repair and maintenance of any such additional property, the order also has effect in relation to any subsequent owner of the lot.
(6) In deciding whether to grant an order under subsection (2) or to provide for the order to have effect from a day that occurred before the date of the order, an Adjudicator may take into account the conduct of the parties in the proceedings, for example, if an owner did not first seek the consent of the owners corporation before carrying out the alterations or repairs.
(7) An application for an order under this section may be made only by a lessor of a leasehold strata scheme or an owner.
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Many buildings have by-laws that either don’t allow children to play on common property or forbid them from doing so unsupervised by an adult.
It is perfectly legal for Owners Corps to regulate the use of common property in this way. Hypothetically, if a child was injured or caused damage while playing on common property, the Owners Corp could be liable for damages for NOT regulating the use of CP.
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@TruleEConcerned said:
I did not carry on with my objections because my view is irrelevant when there are 5 lots in all and 4 are on the EC. Guess who was not asked to join the EC?You say that you would complain and seek an order to stop the works. My question is: how would Fair Trading or NCAT consider the matter if 4 out of 5 owners agree to the payment, even if it’s not in the Act.
That is exactly what NCAT is for – to stand up for the law and individuals who are being unfairly treated by those who ignore it to their own advantage. It doesn’t matter if it’s 4 to 1, or 400 to 1, if they are in the wrong and you are in the right then NCAT should find in your favour.
ScotlandX has given excellent advice. But if you really just wanted to vent your frustration but not actually do anything, that’s your prerogative
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@Faraway girl said:
My questions are these:1. Can the AGM or any meeting for that matter, vote to backdate costs by a different division than the lot entitlements of owners?
2. Can some owners be charged a fee based on one system and others be charged by a different system?
3. Are we correct in stating that we pay our $2400 contribution in quarterly instalments so should not be being billed for other costs of the Strata Scheme.
OK, first of all, you re-sent this (I deleted it) presumably because you didn’t get an immediate answer. By all means nudge us for a reply but please don’t re-send in the same or different forum.
Moving on, you need to get an official letter from Fair Trading with answers to all your questions which you can then pass on to the developer.
You should already be contacting a strata manager with whom you can go to NCAT asking for a section 162 statutory appointment of a strata manager.
This person is breaking the law in so many ways it’s hard to know where to begin. You need a letter from Fair Trading (Ph 13 32 20) detailing the correct procedure. Your developer is getting some very bad legal advice (I doubt if his wife will be considered a different owner for the purposes of the vote at the AGM).
I understand you found the legal advice offered too expensive so you have to do this yourself. So here is what I would do:
1. Get Fair Trading to give you a detailed letter of what the correct procedure is. Contact them by phone and fine the right person to speak to so that you get an official letter from them.
2. Send the developer a letter detailing all the breaches , including a copy of the letter, and warning him that you will challenge any decisions made at the AGM at NCAT and have then overturned because if he goes ahead on the current basis it will be unlawful.
3. Start proceedings for mediation at Fair Trading so the facts of life can be explained to this idiot. They will do a site visit if need be.
4. Find a strata manager who will go with you to NCAT, and offer them, as well, the chance to present as a viable strata manager and have their contract accepted at the AGM in the event that you don’t have to go for a Section 162.
To answer your questions, the developer can only charge levies according to the unit entitlements and he is not allowed to create debts that the owners corp has to pay (therefore he can’t backdate charges).
Once again, you really need to get some strata professionals on board – whether it’s Fair Trading, a strata manager or a lawyer – so that this idiot doesn’t just keep coming at you with another “cunning plan.”
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This requires a simple majority at a general meeting and it has to be done under the terms of the contract. i.e. if you are ending the contract before its due date then you have to have a valid reason for doing so, as set out in the contract.
Even if it’s just that the contract has run out, make sure there isn’t a roll-over clause that requires you to give a certain length of notice before termination can be effected.
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