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I assume by “the strata” you mean the Owners Corporation (body corporate).
According to the government guidelines in the “who’s responsible” document, there is no question that the Owners corp should be repairing or replacing your carpet.
This is what it says (note 13):
If damage is caused to a lot owner’s property while the owners corporation are effecting a repair, the owners corporation are responsible to fix the damaged property.
If you have a strata manager, they should know this and should advise tor committee accordingly. Otherwise, you could tell your committee, in writing, to get on with it or you will be taking them to the tribunal (NCAT) to get orders for the repairs as well as damages for your loss of amenity due to their stupidity and ignorance.
I would also recommend that the person who is blocking this either take the SCA’s free online training course for executive committee members or resign from the committee before they cause any more problems.
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@justsaying said:
i question … whether subletting is acceptable without permission.I completely missed that point. Sub-letting without permission is a breach of the residential tenancy agreement. The tenant should be told that it has to stop or you will be taking it up with the owner who would have grounds for eviction.
If the owner doesn’t care, then all the other stuff above comes into play.
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In the absence of any other instrument, you could have a by-law that says, for instance, that residents must not do anything to undermine the security of common property, specifically by providing keys to the building to people who are not bona fide visitors, registered tenants or permanent residents of the building. That way you are not cutting across Section 49 which relates to lots rather than common property.
It’s worth having a look at Item 19 on THIS TOPIC in which a special counsel quotes considerable case law and concludes that while you may not create by-law that triggers the Section 49 clause, you can pass a by-law that has the same effect
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As with so many issues, it all comes down to your by-laws.
Our building has a by-law that specifically forbids letting car spaces to outsiders – but we know it goes on.
It’s not an issue because it hasn’t caused a major problem (so far) but it does leave us open to abuse if, for instance, the person with the key allows their mates to park illegally when they are all going out somewhere together.
The fundamental issue is the security of the building and how badly it is compromised by outsiders having keys. A person who is not an official tenant does not have to abide by any by-laws, including restrictions on parking in visitor spaces, for instance.
If you don’t have a by-law, you are wide open to anyone and everyone coming into your car park and possibly your common areas and you have absolutely no control over their behaviour.
If you do have a by-law, you don’t have to use it until there is a problem. Then you dust it off and let it do its job by sending a notice to comply to the offending car space lessor.
Here is an example of a couple of clauses in a fairly typical by-law:
No part of any car space may be used by persons who are not an owner or tenant of that lot or a visitor of a resident or owner of a Lot.
You must not
(a) grant any lease or licence; or(b) sell, trade or loan any part of any Lot intended for use as a car space other than to an owner, tenant or resident.
Some buildings have even tighter restrictions that say the car space can only be used by the resident or their visitors, and not the owner who is not a resident. This is to prevent owners “double-dipping” by holding on to a key so that both they and their tenants use common property facilities.
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@justsaying said:
the lawyers involved…. Both leading strata lawyers! One, I suspect , who thrives on ongoing litigation!
what chance do we have? Going to NCAT? That is one flip of a coin where not everyone is a lawyer and often miss the critical and supplementary evidence.
Yes, there are differences in strata lawyers too – some like to fight and win, some prefer to mediate and reach some acceptable compromise. You pays your money, you makes your choice.
The reason there are so many grey areas in strata law is that NCAT and its predecessor the CTTT were buffers that prevented courts from setting precedents that could be used as benchmarks in subsequent cases.
You’ll find the few areas of rock-solid strata law, such as the OC’s duty to maintain and repair common property, come not from the law itself but from case law established in the Supreme and even higher courts.
The fundamental question on your issue is “pain versus gain” – is it worth all the hassle, frustration and expense (in time and energy as well as fees) even when you know you are right?
Never forget the litigating lawyer’s five favourite words: “It’s a matter of principle …”
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You need to separate the concepts of ownership and responsibility for maintenance.
The OC owns common property until such times as it sells or transfers ownership to another person or company.
In terms of tiles on floors this SCA publication, Who’s Responsible, is very helpful, but basically it says tiles on the floor and external walls are the responsibility of owners.
Exclusive use by-laws allow individual lot owners to enjoy exclusive use of parts of common property but, to be legally valid, they must have a clause saying who is responsible for maintenance of the common property for which exclusive use has been allowed.
The default position is that the OC is responsible unless the benefitting lot owner is named as being responsible in the by-law.
However, the intent of the law is for people taking over common property to take over responsibility for its maintenance but for the OC to retain responsibility if they are daft enough not to insist that is part of the by-law. That way, responsibility is always clear (if not entirely fair).
All of the above is why exclusive use agreements made on a nod and a wink should never be entertained. Sales of properties and changes of EC and OC membership leave both parties wide open to disputes that cost time, energy and money and are totally unnecessary.
On the question of lawyers disagreeing, there are lawyers who work in strata, others who live in strata and a third group who’ve heard about strata. All of them think they are experts but only one group is likely to give you the right answer … provided you ask the right question.
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What do the by-laws of the building actually say. We need the specific wording before we can comment.
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@SeeksHelp said:
The works have not been made and the by law is getting the pre approvalNot sure what this means. Who is getting “pre approval” and from whom?
On the other question, if NCAT has issued orders, a further action for pursuit of penalties and costs is highly unlikely to result in the whole issue being re-examined.
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@justsaying said:i think it’s time the media got involved and exposed the bullying manner of so many OCs..
A current affair seems a good option? What do others think? How can we survive in a system that is so unjust to those who live within the Act?Flat Chat has been running in the Sydney Morning Herald for 12 years. I personally have been on TV half a dozen times and I am on ABC radio answering listeners’ questions once a month. In that time we have been responsible for specific laws being changed on at least two occasions.
However, TV news magazines are reluctant to cover stories unless they are applicable to both NSW and Victoria, and since they have very different systems, it’s hard to get issues that are the same in both states.
Also, it’s a dance with the devil. If the producer and promo producer don’t understand the story, they just come up with the usual claptrap. On one recent occasion when I lined up a story (I think it was about developers ripping off owners) the promo for the story on TV was “How strata committees ruin residents’ lives” because the promo producer assumed that’s what it must be.
Media won’t cover internal squabbles in strata schemes, for obvious reasons of “he said – she said” not to mention potential defamation action. And if you want an example of ACA coverage of strata committees have a look at THIS from late last year, inspired by a Flat Chat column on the 10 problem signs in strata buildings.
The best answer is to organise yourselves, run a campaign, get the votes, put your own people in charge and then get ready do the work others are doing, only better.
Oh, and if the committee are acting outside the law and it is costing owners money, apply to NCAT to have a strata manager appointed in place of the committee … but be careful what you wish for.
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@justsaying said:
Can you provide more information? Eg can your order impact on other owners? Etc etc. I understand that the option is to go to the NCAT ombudsman to seek assistance
There is no NCAT Ombudsman. You go to NCAT for orders, penalties and appeals.
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Looking again at the NCAT decision (above) which DID overturn an anti short-term letting ban, we have to bear in mind that the building was previously a hotel and the Member said the owners didn’t put up a convincing argument.
However, it shows that given the right circumstances and the wrong member, by-laws can be overturned.
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In my Flat Chat column in Domain, I jokingly said if you asked six lawyers you’d get seven opinions. Well, our good friend, strata lawyer David Bannerman has passed on these thoughts from Special Counsel Mark Pollinger:
I have attached links to Victorian VCAT and Supreme Court decisions relating to AirBNB. AirBNB is not a party to the proceedings and the proceedings involve an owners corporation attempting to stop various lot owners subletting through AirBNB. Their significance is that they cast doubt on the validity of a by-law restricting leasing through AirBNB.
The Supreme Court decision:
- decides the case against the owners corporation on the basis that it lacked power to make a by-law restricting letting.
- considers the New South Wales legislation and expressly suggests (p82) that section 49 may invalidate a by-law purporting to restrict short-term lettings.
https://www.austlii.edu.au/au/cases/vic/VCAT/2015/956.html
https://www.austlii.edu.au/au/cases/vic/VSC/2016/384.html
In my view, this has little application to New South Wales and is not persuasive authority for a proposition that a by-law restricting short-term lettings would be invalid. In particular:
- As to owners corporation powers to make by-laws, there are significant differences between New South Wales and Victoria.
In New South Wales, owners corporations have broad powers to make by-laws, but subject to some restrictions, including section 49. In fact, the New South Wales case law suggests that owners corporations may make by-laws in relation to almost anything, unless specifically restricted.
https://www.austlii.edu.au/au/cases/nsw/NSWSC/2006/537.html especially paragraph 37.
In Victoria, owners corporations may take only make by-laws in relation to specified matters and the case was decided on the basis, i.e. the owners corporation had no power to make the relevant by-law and it was unnecessary to consider any restrictions, such as a section 49 type restriction. In any event, Victoria does not have an equivalent of section 49, so the comments in relation to our section 49 were at most obiter dictum.
https://www.austlii.edu.au/au/legis/vic/consol_act/sa1988153/s27e.html
https://www.austlii.edu.au/au/legis/vic/consol_act/oca2006260/s138.html
https://www.austlii.edu.au/au/legis/vic/consol_act/oca2006260/sch1.html
2. The New South Wales was case law also suggested section 49(3) should not be read literally and does permit some scope to regulate leasing. However, it does suggest that transactions be prohibited on the basis of some reasonable criteria, as opposed to being prohibited outright. For example, an outright ban on short-term letting might be invalid, while a by-law prohibiting a transaction lacking requisite development consent or requiring compliance with behaviour/amenity standards might not. We need further case law to be sure, but it remains my view that there would be good prospects of defending a by-law of the latter type.
https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma1996242/s49.html
https://www.austlii.edu.au/au/cases/nsw/NSWSC/2006/537.html especially paragraph 54.
https://www.austlii.edu.au/au/cases/nsw/NSWCTTT/2012/425.html especially paragraph 2.
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@justsaying said:
Can one person vote on a paper vote for just one person … 7 positions… So one name only on the seven vacancies? Sorry its a bit confusing… Basically…vote seven times for one person.No, you have one vote for each nominee per vacancy. The smart move would be to organise some cross-voting so that like-minded candidates vote for each other (like the minor parties do at Federal elections).
Paper votes are now required, partly to make sure there is no vote-stacking of the kind you describe.
This is what the current regulation says (my emphasis in bold).
18 Ballot for executive committee
(1) If a ballot for membership of the executive committee of an owners corporation is required, the chairperson must:
(a) announce to the meeting the name of each candidate and the nominator of the candidate, and
(b) provide each person present and entitled to vote at the meeting with a blank ballot-paper for each vote the person is entitled to cast.
(2) For a vote to be valid, a ballot-paper must be signed by the voter and completed by the voter’s writing on it:
(a) the names of the candidates (without repeating a name) for whom the voter desires to vote, the number of names written being no more than the number determined by the owners corporation as the number of members of the executive committee, and
(b) the capacity in which the voter is exercising a right to vote, whether:
(i) as owner, first mortgagee or covenant chargee of a lot (identifying the lot), or
(ii) as a company nominee, or
(iii) by proxy, and
(c) if the vote is being cast by proxy-the name and capacity of the person who gave the proxy.
(3) The completed ballot-paper must be returned to the chairperson.
(4) Until all places for membership of the executive committee have been filled, the chairperson is to declare elected successively each candidate who has a greater number of votes than all other candidates who have not been elected.
(5) If only one place remains to be filled but there are 2 or more eligible candidates with an equal number of votes, the candidate to fill the place is to be decided by a show of hands of those present and entitled to vote.
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