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For many years an apartment I owned in Bondi Beach was managed by Peter Coyle of local real estate agents Coyle & Everett and we never had any complaints. He basically told us what we needed and asked us what we wanted then explained how to get it.
Before him we had a chancer who cost us tens of thousands of dollars and had it written into his contract that nothing was ever his fault even (or especially) when it clearly was.
Before that we had a long-standing one-man operation who held meetings in his lounge room which he would preface by telling us he was trained to kill with his bare hands by Mossad.
Peter Coyle or his Coogee equivalent might be ideal for your situation. Just get two or three referees or testimonials so you know exactly what you are getting into.
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If you are looking for a small (i.e. local) manager, it would be good to know where you are.
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This rang a bell with me and a did a quick search and up came this correspondence from five years ago.
Now the circumstances aren’t identical but there are similarities. So what should you do?
First things first, the smell is a nuisance and the accumulated rubbish represents a potential health risk. You would have grounds for getting orders under section 117 but that would be a lengthy process that could take two months, including a mediation that she probably won’t attend.
Alternatively, the EC could serve her with a notice demanding the place be cleaned out within seven days (offering any assistance you consider appropriate) and if she fails to do so (as she will) apply to NCAT for an interim order (S.170) allowing the EC or its contractors to enter the premises and clean the place out.
Before you do that, try to find a local health visitor or aged care visitor who can be there when this is happening to minimise the distress. in extreme circumstances, if there is no family there to look after her, you might want to look at legal guardianship services.
Best of luck
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You’ll find the pool fencing regulations for NSW here. The location of the fence varies depending on when the pool was installed but the dimensions and structure of the fence are fixed to the latest standards, based on where a small child could conceivably get through, under or over it.
On the question of liability, Peter is right. The owners corp is the management of the building, the strata manager can only act on your instructions.
Whoever did the survey should have indicated where and how the poll was non-compliant and that should be your starting point for modifications.
Luckily, as of April this year, strata schemes were exempted from the law that didn’t allow you to sell or rent a property unless you had a pool safety compliance certificate.
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Your starting point has to be the by-laws that are in place at the moment. All this stuff about acoustic testing etc etc sounds like delaying tactics.
If your EC has done nothing about this, tell them you will seek a section 138 at NCAT forcing them to take action by invoking your by-laws.
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If you can wait until November 30, new legislation allows you to get rid of dumped goods and you can eve sell them although you have to give the money (minus costs) to the original owner.
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The only legal case study I could find was from Victoria where the Supreme Court ruled that notifying someone overseas that they were behind in their levies was not the same as a legal claim (or something like that). Suffice it to say that while you can claim the reasonable costs of debt recovery in unpaid levies, it could be a gamble if you send someone to Shanghai when they can’t do anything when they get there.
There is a clear disconnect between having to register the name of an agent who may pass on communications and making that communications stick in a legal sense. There are certainly plenty of “agents” who are filling shoeboxes with letters and demands from strata managers because they have no idea where to send them.
This property has not been forgotten – it has been “parked”. The owner clearly wanted to get money out of their country and invest it somewhere that it’s not going to lose value. They don’t particularly want people living in it or maybe they just don’t want the hassle of managing rentals. They may even plan for kids who are still at primary school to one day occupy it when they come here to study at university.
In the meantime the other owners are subsidising the investment and many will have moved on before the owner turns up and is slammed with a bill for unpaid levies and compound interest.
There needs to be a mechanism in the law for abandonded units – let’s say those that haven’t paid levies for two years and where the owners can’t (or won’t) be contacted – whereby the Owners Corp can get a court order allowing them to take control of the unit, rent it out and give it back to the owner when they eventually show up (provided their debt has been cleared).
Maybe we should just give them to airbnb to run – because they are such nice, community conscious people. There are areas of London where they have been talking about punitive taxes for people who deliberately leave their investment units empty. It would be better for everyone if “parked” units were put back on the rental market until they were claimed.
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@ROBYN SHORT said:
Hi, if anyone kindly please has an insight on the extent to which a consulant firm is necessary to report on a sinking fund in a 21 unit block, will be glad of your reply. Thank youAs Cosmo says above, not necessary and, for a 21-unit firm, maybe not even desirable.
This has been discussed many times and at considerable length most recently HERE. Click on the link and scroll down to item 6 (where a fresh discussion starts) and you will find a lot of ideas and tips on how to do this efficiently and inexpensively.
Just making a list of all the areas of common property, when they were last repaired or maintained (if at all) and how much it cost would be a start.
That said, if there is no one on your committee or in your building that has even that level of expertise, maybe you do need a consultant after all.
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If it was just a case of the donor parking the new furniture in the foyer, it would be just a paper vote. because it’s fundamentally a request to leave furniture on common property.
However, attached to that is a demand that the owners corp takes ownership of the furniture, insures it and promises not to remove it. That is where the procedural issue lies and the donor has to either remove the caveats from the gift or allow the owners corp to do this properly so that the majority of owners agree to the “contract”.
With your AGM just a few weeks away, leave it till then and save yourselves the cost of another general meeting. It will be a hard task, convincing someone who doesn’t “get” strata law but it will be worth it.
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This doesn’t sound like a 65A issue as you are not physically changing common property.
Talk to a strata lawyer but it feels like a special resolution by-law issuing a licence to accept the donation, maintain and insure the materials, and permit them to be left on common property.
This kind of special resolution has two built-in protections. First it must be passed by 75 percent of owners voting at a general meeting and secondly it can’t be revoked without the permission of the donor.
Strata law doesn’t anticpate acts of philanthropy (with strings) so this may be as good as you’ll get.
Division 4 Special provisions for by-laws conferring certain rights or privileges
(1) This Division applies to a by-law conferring on the owner of a lot specified in the by-law, or the owners of several lots so specified:
(a) a right of exclusive use and enjoyment of the whole or any specified part of the common property, or
(b) special privileges in respect of the whole or any specified part of the common property (including, for example, a licence to use the whole or any specified part of the common property in a particular manner or for particular purposes),
and to a by-law that amends or repeals such a by-law.
(2) This Division does not prevent an owners corporation making a by-law in accordance with section 54 of the Community Land Management Act 1989.
52 How does an owners corporation make, amend or repeal by-laws conferring certain rights or privileges?
(1) An owners corporation may make, amend or repeal a by-law to which this Division applies, but only:
(a) with the written consent of the owner or owners of the lot or lots concerned and, in the case of a strata leasehold scheme, the lessor of the scheme, and
(b) in accordance with a special resolution.
(2) A by-law to which this Division applies may be made even though the person on whom the right of exclusive use and enjoyment or the special privileges are to be conferred had that exclusive use or enjoyment or enjoyed those special privileges before the making of the by-law.
(3) After 2 years from the making, or purported making, of a by-law to which this Division applies, it is conclusively presumed that all conditions and preliminary steps precedent to the making of the by-law were complied with and performed.
53 Can a by-law contain conditions?
A by-law to which this Division applies may confer rights or special privileges subject to such conditions as may be specified in the by-law (for example, a condition requiring the payment of money by the owner or owners of the lot or lots concerned, at specified times or as determined by the owners corporation).
54 By-law must provide for maintenance of property
(1) A by-law to which this Division applies must:
(a) provide that the owners corporation is to continue to be responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, the common property or the relevant part of it, or
(b) impose on the owner or owners concerned the responsibility for that maintenance and upkeep.
(2) Any money payable under a by-law to which this Division applies by more than one owner to the owners corporation or to any person for or towards the maintenance or upkeep of any common property is payable by those owners proportionately according to the relative proportions of their respective unit entitlements unless the by-law otherwise provides.
(3) To the extent to which a by-law to which this Division applies makes a person directly responsible for the proper maintenance, and keeping in a state of good and serviceable repair, of any common property, it discharges the owners corporation from its obligations to maintain and repair property under Chapter 3.
55 What is the effect of a by-law?
(1) A by-law to which this Division applies, while it remains in force, continues to operate for the benefit of, and is binding on, the owner or owners for the time being of the lot or lots specified in the by-law.
(2) If a person becomes owner of a lot at a time when, under a by-law or under this subsection, a former owner is liable to pay money to the owners corporation, the person who becomes owner is jointly and severally liable with the former owner to pay the money to the owners corporation.
(3) Any money payable by an owner to the owners corporation under a by-law to which this Division applies or under subsection (2) may be recovered, as a debt, by the owners corporation.
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As a renter you have exactly the same rights as anyone else to the peaceful enjoyment of your home. You can even initiate action at Fair Trading to resolve the issue through mediation.
But getting back to basics, there are two parts to this problem. The first is technical, the second behavioural.
Starting with the technical side, many modern door closers have a two stage setting on them. They close fast until the are almost at the jamb, then they slow down to avoid slamming. They can be adjusted to vary both forces independently. However, there are fire safety people who will adjust them to maximum slam because that is theoretically safer (and they don’t care about the disruption that causes).
But it’s nonsense to say they can’t be touched because of fire safety. All fire regs require is that the door will close if left to its own devices. They can’t be removed but they can be adjusted.
If the door closer can’t be adjusted and the neighbours can’t be persuaded to hold the door as it closes, then you may have to take action to force them to do so. You could ask your strata manager or strata committee to issue a Notice To Comply with whatever by-law you have covering noise nuisance.
Now, you will hear all sorts of nonsense about the tenants being given so many warnings first. This is all rubbish. A Notice To Comply is simply an official warning that a resident is breaching such and such a by-law. It warns that failure to comply with the warning in future could lead to further action and fines. In the case of tenants, breaches of by-laws can lead to eviction as they have broken the terms of their lease.
However, if the strata committee or strata manager still won’t step up, you can seek orders at the Tribunal (NCAT) but first you would have to seek mediation at Fair Trading in the first instance, using this form. Have a look at your by-laws and see which one you would pursue them under.
You will get conflicting advice on this becasue there are three routes you can go down. One is to raise a complaint against your landlord, another is to raise a complaint against the strata committee/manager, the third is to raise the complaint against the noisy neighbour.
If the committee isn’t interested, my preference would be to raise the issue with the neighbour. The argument that you can’t control kids just doesn’t wash in strata. If they really can’t get their kids to behave, then they shouldn’t be living in a unit.
Now, if I were in your shoes I would wait until November 30 when the new strata laws come in and you can approach your strata committee and ask THEM to arrange mediation. Then you can sit down with the neighbour in a less confronting environment and get them to see your point of view (while getting one stage closer to Tribunal action, if required).
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I agree with Peter C but I would add that there would be an argument (which may not fly too far) that in not insulating the roof the owners corp is not properly maintaining common property.
Look at it this way, the upstairs apartments, by default, provide insulation for the lower floors – but who provides insulation for them. Then there is the question of shared responsibility.
Q: If my unit is contained within the East, South and West walls – why should I contribute to the maintenance of the North wall?
A: Because it’s not just about me and what directly affects me.
I can think of half a dozen strata lawyers who would love to run that argument through NCAT. However, as PeterC says, this should be done amicably and without getting all Rumpole of the Bailey about it.
If everyone accepts that insulation is a good thing for the environment, if nothing else, and the owners corp wants to avoid unnecessary costs and have some control over the quality of the insulation, you should reach an agreement, take a financial contribution from the upstairs owners and get on with it.
The financial and social cost of fighting this outweighs any benefit that might later accrue, especially if NCAT ultimately ordered the Owners Corp to install the insulation at its expense.
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@phill74 said:
We applied to NCAT for a compulsory strata manager to be appointed, and after an initial rejection, I finally convinced NCAT to make the appointment, and a New SM was appointed around June 2016.Depending on the terms of the compulsory appointment, you no longer have any say in the running of the building. Many of your problems will stem from that fact. this is what Fair Trading says about statutory appointments:
An Adjudicator may appoint a nominated person as a managing agent to carry out:
- all the functions of an owners corporation
- all the functions of the executive committee and/or the Chairperson, Secretary or Treasurer
- only some of those functions
… if an Adjudicator is satisfied the owners corporation is not doing its work satisfactorily, or has failed to comply with an order, failed to perform one or more of its duties or owes a judgement debt, the Adjudicator may appoint a managing agent.
The only other thing I can think of is to apply for mediation, or make an application for determination with NCAT, but reading other posts here not sure these would produce a result, and its really hard to organise from the other side of the planet.
It’s still your only option. There is no other mechanism for correcting this discrepancy.
To me [quoted strata law means] that the strata levies have to be charged to individual owners in accordance with the amounts decided at the AGM. The AGM held in 2012 specified amounts until 30 June 2013 only, and no AGM has been held subsequently. That means that no levies can be raised against owners for subsequent periods, until a further AGM is held.
Are you sure about this? It seems strange to me that the law would allow a strata scheme to run out of money because of a failure to follow correct meetings procedure. I would say the levies can’t be changed without agreement at an AGM – not that levies cease to be collected.
Nowehere in the law does it say that you shouldn’t pay levies that have not been approved at an AGM. In fact, I would also be guided by section 78 which if nothing else, allows for anomalies including that owners are expected to pay levies even when they haven’t received a notice.
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 (subject to this section and section 77) by the owners in shares proportional to the unit entitlements of their respective lots.
(6) Regular periodic contributions to the administrative fund and sinking fund of an owners corporation are taken to have been duly levied on an owner of a lot even though notice levying the contributions was not served on the owner.
Compulsory appointment
More significantly, when you have a statutorily appointed strata manager, they are effectively the owners corp so any decisions you made as owners would be irrelevant. They can set the levies without reference to the owners.
Compulsory appointment is a double-edged sword. OK, you get rid of one dysfunctional system but the price can be giving up all control over your building. To reverse the statutory appointment, you would have to go back to NCAT and either prove gross mismanagement by the New SM or that you as owners have got yourselves sorted out and are capable of running the show yourselves.
Claiming the new guys are just as bad as the old guys may make an NCAT adjudicator ask “what is the common factor in this?” (that would be you, the owners) and make them less, not more likely to rescind the statutory appointment.
One other thing, the fees for a six-unit block are so low it’s hard for firms to justify spending a lot of time on their management. Charges often go up as a result.
Also, complaints to Fair Trading about strata managers will have little or no effect.
I hate to say this but, given your situation, I would recommend selling your unit and buying somewhere in a bigger block that’s better run so you can forget about it.
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