[Jimmy-T]

If the fan isn’t ducted then you could be facing problems a lot worse than noise (so I wouls assume it was).

This may simply be a case of a poor DIY installation that has remove noise reduction measure or it could be inappropriate equipment for the job.

Talk to your committee and/or strata manager. 

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.

[Jimmy-T]

@proudsceptic said:
Re your comment about being forced to sell up …. It sounds as though you would not have had a happy time living next door to your partying neighbour whether the wall was removed or not. 

I am aware of the options open to me to deal with a noisy neighbour. But there were several other points that I made here that are relevant to this discussion.

The first is that by removing the bedroom, my neighbour was removing a noise buffer from his intended activity.

Secondly, by creating more “party room”, the neighbour was effectively planning to increase the noise that no longer had a buffer.

… I personally would have requested a structural engineer’s report rather than rely on a report by a builder …

Bully for you! But your request would have been rejected because it had no legal basis. Regardless of your thoughts about change of layout, our local council’s planning regulations state that plans to change the configuration of an apartment require a DA.

However, this resident – a big wheel in real estate – found it very easy to get a builder who would sign a certificate of Complying Development that the council couldn’t even check.

Council told me that if I had a problem I should pursue the builder as they had signed the certificate. Once a certificate of complying development is issued, they said, Council Planning has no further say in the matter (unless, presumably, you can prove it was fraudulent).

The strata committee has to take some share of the blame here as they didn’t press the case on whether the change of layout was appropriate.

Finally, noise complaints against this neighbour are proceeding through Fair Trading and NCAT and I have to admit it wasn’t the only reason for selling.  But it did make the decision a lot easier.

I totally disagree that the removal of walls to change the layout of an apartment and noise issues are totally separate.  Just ask anyone who discovers their upstairs neighbour has relocated their bathroom to above their bedroom. 

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.

[Jimmy-T]

Yes, they should and that involves deferring their decision to a higher authority if they are not sure.

I live in an apartment building where one owner removed a room, meaning his lounge room (which he wanted to expand so he could have bigger parties – seriously!) was now next to my bedroom. He got a builder to say that this was all OK and the council, even though their regs say you have to have planning permission to change the configuration of a flat, went along with it because the builder said it was a compliant development.  

The strata committee went along with it because the council said it was OK.  The noise was so bad I sold the flat.

My point is that removing a wall isn’t just about supporting the ceiling. It may mean that “active” rooms are suddenly next to “passive” rooms – a lounge is suddenly next to a neighbours  bedroom whereas most bedrooms are next to bedrooms in modern apartment blocks.

So you are right about strata committees not being experts – that’s why they should make absolutely sure before they permit something that is going to benefit one owner to the detriment of another.

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.

[Jimmy-T]

@proudsceptic said:
In QLD the by-laws (i.e. strata laws) cannot be changed to exclude short term rentals. An Adjudicator’s Order of Sept 2016 found that a by-law such as that would be void. The Adjudicator based the Order on the following BCCMA legislative provisions:

[s180(3)] If a lot may lawfully be used for residential purposes, the by-laws can not restrict the type of residential use.

And

[s180(4)] A by-law can not prevent or restrict a transmission, transfer, mortgage or other dealing with a lot.

Queensland is another planet when it comes to strata so this doesn’t surprise me at all.  Interesting though that airbnb is starting to sue authorities that try to restrict their $30 billion business.  So much for sharing and caring.

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.

[Jimmy-T]

@pedant said:
I hadn’t realised that from 30/11/16 there was no reference to the bylaws so if there is a noticeboard it can just post on the board and not given directly to the owners.  Is this how you read it?  

If it’s a large scheme (more than 100 residential lots) it has to be on the noticeboard if there is one and delivered to the owners.

If it’s a non-large scheme (100 residential lots or fewer) it has to be on the noticeboard if there is one or delivered to the owners.  

However, owners corps can pass a by-law instructing the strata manager or secretary to distribute the agendas and minutes to all owners by whatever means provided that complies with the Act.

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.

[Jimmy-T]

@Peter Gray said:
How do I get a copy of our by-laws? I’m a real novice when it comes to things strata.  

Your by-laws should be attached to your contract of sale and your agend or minutes for your AGMs.  Ask your strata manager for a copy if you can’t find them.

Strictly speaking you should go to your strata committee first unless they have delegated all their responsibilities to the strata manger and then go to them.

Have a look at this explanation of the basic options for raising issues.

By the way, your neighbour has probably interfered with common property by installing this fan so you have every chance of success.

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.

[Jimmy-T]

What does it say about noise and the “right to peaceful enjoyment” in your by-laws? Not being cheeky – by-laws differ from building to building.

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.

[Jimmy-T]

No, it’s because any agreements signed right now have to be under existing laws.  There’s no point in getting people to sign an agreement that isn’t legally correct until November 30, when the new contracts will be rolled out.  I’m told most responsible strata managers are renewing contracts under the new limit of three years anyway. If yours isn’t, tell them to take a hike.

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.

[Jimmy-T]

@JC said:
I’m wondering if a ‘class action’ type approach could be used to tackle this issue. I’m assuming it might be feasible to have a very specific by-law drafted which challenges the basic principles of certain Parliamentary Inquiry recommendations.  If a large enough number of Owners Corporations implemented this by-law, then funded as a collective the defence when it was challenged, we might bring the fundamental unfairness of this report to a head.

Nice idea but it’s a fundamental principle of strata law that you can’t pass by-laws that supersede “superior laws”.  That’s why strata schemes that are not zoned exclusively residential can’t really have by-laws banning short-stay lets. Your by-laws would never actually be by-laws because they would fail the first test.

I think right now we should be writing to our MPs and local councils, telling them that if they support this short-sighted attack on our lifestyles then we will attack theirs by sacking them at the next election.

The proposals seem to be that while strata schemes will not be able to ban short-stay lets, local councils will be able to set the number of nights per year that they are allowed before they have to have planning permission (which they will automatically get anyway).

City of Sydney has privately suggested 100 nights a year (or every weekend, if you want to look at it that way) and seem to be absolutely stunned that people aren’t dancing in the street at this wholesale destruction of fragile but growing communities just so they can look cool and trendy and their supporters can make money at their neighbours’ expense.

Money talks, principles walk and the short-stay letting industry has a lot of money to throw at this, as they have shown in Victoria and now here. It’s ironic that Sydney, that likes to kid itself that it’s a world city, is deliberately ignoring what is happening in real world cities like New York which has just imposed a minimum rental period of 30 days because its housing stock is evaporating while its hotels face closure and massive job losses.

But you are right, strata residents need to get together and let the politicians know they aren’t going to get away with treating us like third-class citizens. If you want to get involved, sign the Neighbours Not Strangers petition and have a look at their Facebook page

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.

[Jimmy-T]

If you are in a large strata scheme (more than 100 lots) you have to post meeting notices on your notice board AND deliver them to owners and tenant representatives on the committee either physically or by email. 

In smaller schemes (less than 100 lots) the notices can be either sent out or posted on the notice board (or both).

This is what the 2015 Act says:

4 Notice of meetings for large strata schemes
(1) The secretary of the owners corporation of a large strata scheme must give notice of a meeting to each other member of the strata committee (including any tenant member) at least 3 days before the meeting and to each owner.
(2) Notice is to be given in accordance with section 263 and by displaying the notice on the notice board (if any) maintained by the owners corporation.

5 Notice of meetings for other strata schemes
(1) The secretary of the owners corporation of a strata scheme that is not a large strata scheme must give notice of a meeting to each other member of the strata committee at least 3 days before the meeting and to each owner.
(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.

Section 263 defines the word “given” as various acceptable means of delivery, including electronic, snail mail and hand delivery..

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.

[Jimmy-T]

@gusmich said:
How do I get rid of this paving. Can i simply remove it?

This is someone else’s property, so no. You can ask the Owners Corp (in writing)  to remove it and charge the individual the cost of removal and if they fail to do so (within two months) apply for a Section 138 orders.

Its below our windows and idiot tenants have parties on it until 3am.

Then you should be asking for notices to comply and calling police for noise created after 10pm during the week and midnight on weekends.

What sections to apply Orders under (138 I think).  Do i apply against strata plan/strata manger for fail to follow act or lot owner?

Section 138 is for orders compelling the Owners Corp to do something. There is little point seeking orders against the strata manager as they only do the bidding of the Owners Corp (theoretically).

If you have the standard by-law #4  (which you probably will if the building is pre-1996), it says this:

An owner or occupier of a lot must not … use for his or her own purposes as a garden any portion of the common property.

 So you could pursue the lot owner for a breach of by-laws.

Can I use community justice centre instead to do the mediation?

Yes. Click on this link to Fair Trading’s page on mediations.

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.

[Jimmy-T]

The thinking in NSW seems to be that by law the owners have to provide a contact address on the strata roll and the strata roll has to be available for inspection to all owners.  However the law doesn’t require owners to provide an email address so that is not part of the strata roll and, for privacy reasons, is withheld from the official records of the strata scheme.

But just to give you an idea of how twisted this is, our EC – normally dominated by a person who proxy farms on an agri-business scale – has emailed out a newsletter asking owners to give their proxies to EC members, due to the change in the law.

When I said they should also allow other owners to put their names forward, just in case there are owners who don’t want the same bunch of people making all the decisions about the building, the snotty response I got was that the email distribution service was not to be used by ordinary owners “due to reasons of privacy”.

What’s that saying about “absolute power”?

There is a fairly easy and inexpensive way to get around this. Get some postcards printed up telling people that they are not getting all the information they need about the running of their strata scheme and if they want to know more, here is your email address.  Most people will ignore it but some will be intrigued.

Arguments about privacy are pretty spurious, anyway, when you see what people put on Facebook and Twitter.

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.

[Jimmy-T]

It’s a very valid point you make and I have been thinking about a few options.  All the legal advice I have had on this recently has been that it is not strictly legal to ban non-residents from common property but it is legal to charge owners for additional services above an beyond what everyone gets anyway.

Taking the first part first, the proposed laws would expect us to wait until something goes wrong and then pursue the “host” through the Tribunal, with no guarantee of success (NCAT being the chocolate wheel that it is).  My view is that we  could pursue policies that are “extra-legal”  – i.e. have a questionable legal basis but aren’t actually criminal – and let the “hosts” pursue us through the Tribunal process, with them taking the gamble on their time and money.

Barring non-residents from common property facilities would be just such a policy, as well as a highly zealous policing of noise and safety to the point of cutting off electricity to noisy apartments.  These are tactics that might not withstand a serious legal challenge but might drive out short-stay hosts whop can’t be bothered to jump through all the hoops that the inquiry committee wants us to negotiate.

Another tactic might be, as you suggest, to charge owners for additional services related to their apartments’ guests.  Phone calls to the building manager asking where the bins are and approaches to the concierge (if you have one) could all be charged to the lot owner under a set scale established by a by-law. For instance, a request to hand over keys or allow access to the garage could incur a charge of $100, payable by the lot owner.

I believe that anything that would not be a usual interaction with permanent residents could be covered by a service charge by-law.  This is covered by section 111 of the current laws and section 117 of the incoming strata laws, both of which say the same thing. 

111   Can an owners corporation provide amenities and services to a lot?

An owners corporation may enter into an agreement with an owner or occupier of a lot for the provision of amenities or services by it to the lot or to the owner or occupier of the lot.

Therefore, using the instrument of a by-law, you say “we will provide the following services to short-stay rental guests (i.e. those who do not have residential tenancy agreements) on the following basis …” and then you have a menu of charges for everything from answering a phone call to putting a sticker on a car parked in visitor parking.

Is it entirely legal?  It doesn’t matter. The way things are set up at the moment, some residents flout our by-laws then thumb their noses at us as we laboriously pursue them through NCAT.  It’s time we used the system to our advantage and let them pursue us.

Oh, by the way, there’s another battlefield – are short-stay guests “visitors” as far as visitor parking is concerned? Look forward to losing all your spare parking if and when we are forced to accept short-stay rentals.

Meanwhile, I would strongly recommend that any building that doesn’t want short-stay letting passes a by-law stating the short-stay letting is not appropriate for the building and instructing the strata committee to pursue any breaches of by-laws and strata laws by short-stay hosts and guests with the utmost vigour and to the full extent of the law. 

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.

[Jimmy-T]

The easiest way to overturn a levy is to hold an extraordinary general meeting (EGM) which you can call by getting the signatures of 25 percent of owners, then get a simple majority of those at the meeting to vote to rescind the decision.

If you took this to NCAT you would either have to prove deceptive practices or that the majority of owners, properly informed, would have rejected it.

The easiest way to do that is to call the meeting and attach explanatory material to the agenda as well as lobbying owners in person or by mail.  As an owner you are entitled to see the strata roll and copy the addresses of non-resident owners.

If that isn’t workable, I doubt if NCAT would step in, in any case, unless there was clear evidence of fraudulent behaviour.

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.

[Jimmy-T]

First and foremost, I have to say that the advice I am giving below is just my personal opinion and is not professional legal advice.  I am just explaining the possible grounds for a response but I urge you to seek proper legal advice from a specialist strata lawyer as soon as possible.

There are certain fundamentals related to all this, not least that you can’t be charged levies calculated on any other basis than your Unit Entitlements, so I believe the bills that you have been presented with are invalid because they have not been calculated in accordance with the law.

If you haven’t already done so, send the owner a letter (or letters) telling them that their bills breach of Section 78(2) of the Strata Schemes Management Act 1996

78   Manner of levying contributions

(1)  An owners corporation levies a contribution required to be paid to the administrative fund or sinking fund by an owner of a lot by serving on the owner a written notice of the contribution payable.

(2)  Contributions levied by an owners corporation must be levied in respect of each lot and are payable … by the owners in shares proportional to the unit entitlements of their respective lots.

If the original owner proceeds with the meeting and prevents you from voting, there are also processes at NCAT whereby you can get orders to invalidate decisions made at meetings that were not held in accordance with the Act.

You can also apply for financial assistance in pursuing legal claims.

So my first step in your shoes would be to approach an experienced strata lawyer and get them to write a letter to the developer explaining what he can and can’t do and why.  

This is important because if at some time you need to overturn decisions made at the meeting and extract the costs of doing so, you want to be able to prove that the owner was aware that he was breaching the law.

So find a reliable strata lawyer (one of our sponsors is a leader in this field) and get them to send the letter and do whatever you need done, including getting the owner to pay for your legal advice.

If you don’t have time to organise that, then send the owner a letter telling them that they are in breach of the Strata Schemes Management Act and you will be challenging the validity of any meeting under sections 153 and 154 of the Act (see below) and that you will pursue orders under section 162 of the Act for the statutory appointment of a strata manager until such times as a properly constituted first AGM can be held.

Having said that, this is very tricky and you really need to get a strata lawyer on board as soon as possible because I can’t give you professional advice on this.  

A good strata lawyer will be able to sort this out with a letter and find a way of making your developer pay for it.

 

153   Order invalidating resolution of owners corporation

(1)  An Adjudicator may make an order invalidating any resolution of, or election held by, the persons present at a meeting of an owners corporation if the Adjudicator considers that the provisions of this Act have not been complied with in relation to the meeting.

(2)  An Adjudicator may refuse to make an order under this section but only if the Adjudicator considers:

(a)  that the failure to comply with the provisions of this Act did not adversely affect any person, and

(b)  that compliance with the provisions of this Act would not have resulted in a failure to pass the resolution or have affected the result of the election.

(3)  An application for an order under this section may be made only by an owner or first mortgagee of a lot.

154   Order where voting rights denied or due notice of item of business not given

(1)  An Adjudicator may order that a resolution passed at a general meeting of an owners corporation be treated as a nullity on and from the date of the order if satisfied that the resolution would not have been passed but for the fact that the applicant for the order:

(a)  was improperly denied a vote on the motion for the resolution, or

(b)  was not given due notice of the item of business in relation to which the resolution was passed.

(2)  An application for an order under this section may not be made after 28 days after the date of the meeting at which the resolution was passed.

(3)  If an order under this section is made in relation to a resolution making a by-law or amending or repealing another by-law and the order has been recorded as provided by section 209, the by-laws have force and effect on and from the date the order is so recorded to the same extent as they would have had if the resolution had not been passed.

(4)  Subsection (3) is subject to the by-laws having been or being amended or repealed in accordance with this Act and to any relevant order made by a superior court.

(5)  An application for an order under this section may be made only by a person entitled to vote on the motion for the resolution concerned.

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.

[Author]

Replies