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Whoever told you that the Tribunal won’t order reinstatement is wrong. If your by-laws say carpet can only be replaced by carpet then that’s how they must be observed.
If there is a clear and registered by-law in place and they have breached it, then I can’t think of any reason that you won’t prevail but it may be a long haul.
Having said that, you have to allow for the idiosyncrasies of NCAT members who have been known to ignore by-laws – but that just slows the process.
So hang in there. These renovators are selfish bullies and need to be brought to heel, if only because they are setting a precedent for the whole building.
The process should go something like …
Talk to an experienced strata lawyer
Have a committee meeting and issue a notice to comply (which the rogue owners will ignore)
Apply to NCAT for orders forcing them to comply (which they will appeal)
Win the appeal in front of a tribunal member (they may appeal to a court)
If they don’t appeal, ask for penalties for breaching tribunal orders
If they appeal at court, ask for an award of all costs.
The misconception about flooring orders stems from cases where strata schemes have not had clear-cut by-laws.
They have gone to the tribunal demanding carpeting be re-laid and the tribunal has decided that was beyond their remit as the by-laws haven’t stipulated that.
However, in those cases, the Tribunal may order that the rogue owners adequately insulate their floors (which leads to the great rugs v carpet debate but often ends in the floor being re-carpeted).
By the way, if you time your run at NCAT right, the new strata laws will have come in and fines will be paid to the owners corp and not the government, making the whole process more economically viable.
Talk to a strata lawyer
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They are documents belonging to the Owners Corp and there is no secret ballot (yet) so, yes, you can pay your $30 and trot down to the strata manager’s office for a sticky beak.
@Whoopi said:
The EC have called two EGMs on the one day half an hour part. One for our lot and one for another lot . Why did they not include both motions in one EGM is this a grab for money ?.Never attribute malice to something that can just as easily be explained by stupidity. Apart from that, unless there are significant differences between the lots or the proposed work, you shouldn’t need two by-laws.
Do we have to pay costs as we did not cause the EGM or ask for the EGM. Our by law was defeated because they made a massive error in our by law. They are trying to enforce a bylaw on is for work done over twenty years ago. They also want to pass all,costs on to us.
This is very confusing. If you want advice, you need to tell us clearly what the situation is. What is the by-law about? When was the poorly written by-law proposed and defeated. Who wrote it?
The Owners Corp can’t pass a by-law retrospectively. But they can reinstate common property if it’snot covered by an appropriate by-law
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This confirms what VCAT ruled in the recent Watergate case in Melbourne – short-term sub-lets are not residential letting agreements, they are a “licence”.
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If the block is 46 years old, as you say, that dates it at 1970 – four years before the new strata laws came in making balcony doors common property.
On the face of it, your strata manager is correct. Talk to him about getting the doors fixed or replaced at the same time as some other owners to bring the cost down.
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Firstly, your unwell resident can vote by proxy but even if they didn’t, the by-law can only be blocked by 25 percent of votes cast at the general meeting.
Here’s the gist of a by-law that might work for you – but you should get your proposed by-laws checked, at least, by a strata lawyer or strata manager.
No Short Term Letting
1. Owners may not enter into any arrangement to let their lot for a period of less than 3 calendar months pursuant to a lease, sub-lease, tenancy agreement, licence, sub-licence, understanding or contract of any kind.
2. Owners must ensure their occupiers or sub-tenants do not let the lot for a period of less than 3 calendar months pursuant to a lease, sub-lease, tenancy agreement, licence, sub-licence, understanding or contract of any kind.
3. The Owner must indemnify the Owners Corporation against any claim, action, demand or expense incurred in relation to: (a) Short Term Lettings conducted from your Lot in breach of this bylaw; and (b) the exercise of its rights under this by-law; and (c) enforcement of this by-law.
4 This by-law confers on the Owners Corporation the power
a) to prohibit owners and others from engaging in Short Term Lettings
b) to enter any part of the scheme to carry out investigation to confirm reasonable suspicions that short-term letting is occurring
c) to report Short Term Letting to the local council
d) to engage in whatever legal action may be necessary or desirable to stop the Short Term Letting
e) the authority to recover the costs of carrying out the activities above from the owner as a debt.
As I said before, check with a strata lawyer or manager to make sure the specific conditions in your scheme are covered by any by-law.
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Forget the strata manager. Write to the secretary of the Owners Corp and tell them you need access but, if they insist on you calling out an electrician or power company worker, you will be charging them the call-out fee.
Energy companies are increasingly demanding that we do our own meter readings. It is completely unreasonable for strata managers and building managers or caretakers to deny access. Also, in case of emergency, someone in your building should be a registered keyholder.
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Your thoughts are very close but not identical to the NSW Fencing Act, which according to the “Who’s responsible?” document, basically says:
If a fence …
1. Divides two lots. Each owner is responsible 50/50
2. Divides one lot from common property. The owner is responsible 50% & the owners corporation is responsible 50%
3. Divides one lot from the adjoining property [which is not part of the strata scheme]. The owners corporation are responsible for 100% of its share.
In the absence of specific legislation or guidelines, I would use the above until someone told you you couldn’t.
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@noshirts said:It is quite possible that the NSW legislation intended to operate similar to the ACT but just worded it badly.
Anything is possible – but if that was the NSW legislators’ intent why then have the current crop come up with a slight clarification that is different from the ACT regulations in precisely the way I have outlined above.
The wording of the current law – “one-quarter in value of votes is cast …” – is only slightly more ambiguous than the proposed law: “… 25% of the value of votes cast …” However, it clearly refers to the votes actually cast rather than, as in ACT regs, the number of votes that could have been cast.
You will still get pedants who will argue, quite wrongly, that an abstention is the casting of a non-vote and therefore should be counted in the overall total.
However, this Act has been in place for almost 20 years and I am yet to come across a single example of a court ruling creating the precedent where an abstention at a strata general meeting is counted as a vote.
So, no more hypotheticals on this please. As my mother used to say, “If ‘ifs and ands’ were pots and pans, there’d be no need for tinkers.”
Also, with all due respect to Mr Ilkin, if all lawyers agreed on interpretations of the law they would do themselves out of a job.
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You’d need to check your Development Approval and how many visitor parking spaces were specified.
Once you lease them for private use, they have ceased to be visitor spaces and you leave yourselves wide open to complaints for anyone, for instance, who required daily care and needed parking.
You would then face problems with the person who has been illegally leased a space that is no longer available. And it would only take one call to council for them to get involved too.
Lockable bollards are incredibly effective way of controlling car parking – and they are not that expensive.
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The two I know best (and trust) are Manage Meant and Francis Management. Click on the links to get to their websites and tell them I sent you.
JimmyT
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For legal advice, why not try our sponsors Sachs Gerace Broome. Go to the home page and click on the ad and it will take you to their website.
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Allocating visitor spaces to your own residents would be in breach of your development approval.
A better idea might be to devise a by-law with strict set of parameters for use of visitor spaces. Something like maximum three hours in any 24-hour period with the exception of overnights who can’t park before 8pm and must vacate by 8 am.
Then you bollard the visitor spaces and provide keys to any residents who sign a document agreeing to the restriction and pay a refundable key deposit.
When bona fide visitors arrive, the residents use their keys to let them in.
Or you wait for the new laws to come in, print visitor parking permits for your scheme and ask your council rangers to patrol the car park and ticket anyone who is parked in visitors parking without a permit.
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The laws about visitor parking haven’t changed. If you have by-laws that prevent it, they will stay the same. If your building has problems with rogue parking, then the new laws don’t come in until later this year and even then, it’s unlikely to have an immediate effect, if any.
In your situation, this ad hoc arrangement will be fine until someone decides it isn’t. There are no StrataKops patrolling buildings looking for by-law breaches. If nobody in your building objects, then you will be fine. If and when someone does, you need to think about renting a space from another resident – or parking your car in the street!
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