Forum Replies Created
-
Replies
-
Firstly the new laws will only change the model by-laws that will be available for adoption, mainly by new schemes. They will not affect existing by-laws unless a substantial majority of your owners want to adopt them.
Secondly, the new laws will specifically prohibit by-laws that are “harsh, oppressive and discriminatory” – I would suggest that one interpretation of a by-law limiting pets to owners with gardens could be seen as ticking all three of those boxes.
So what do you do?
My advice would be nothing. I personally favour pets in apartment blocks – they are great community builders and offer a lot of comfort to people who might otherwise be very lonely.
But I also respect the wishes of those who don’t want to live around animals of any kind.
In your position I would offer the facilities of the committee – including your distribution of minutes etc – to both sides of the argument and avoid taking sides yourself.
Your pro-pet owners need to get 75 percent of the owners voting at a general meeting to agree on a change to the by-laws. Tell them that if they can have a by-law ready for the next AGM, you will put it on the agenda.
Your anti-pet owners just need three out of the 10 units to vote against to stop the change. But if a reasonable by-law change convinces eight of the ten owners, then that is the will of the people.
By the way, the strata professional I know think you don’t even need by-laws that specify what is and isn’t acceptable with pets.
There are enough bylaws dealing with noise, nuisance and damage to common property to see any badly behaved pets evicted.
And, on another topic, seven members of a committee in a block of 10 sounds like too many chiefs, to me.
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.
Hi Annabella
I think you misunderstand the function of by-laws. Even if the new laws were to include an anti-smoking by-law, it would only apply to your scheme if your owners corp subsequently adopted it.
For that to happen, no more than 25 percent of owners at a general meeting would have to object. To put it another way, you would have to have 75 percent of owners voting at the AGM, doing so in favour of the by-law.
What you need to find is your current by-laws and look for any that relate to the “peaceful enjoyment” of your lot or, more specifically, to smoking on common property. If they already exist, then you need to pursue that through Fair Trading and/or NCAT. To find out how, click here.
However, even if there is no by-law, you can rely on Section 117 of the law (below) which says that owners and occupiers must not use their lot or common property in a way that creates a nuisance or hazard to other residents.
It would seem on the face of it that excessive smoking is both a nuisance and a hazard to you. By the way, the new laws will, for the first time, define “smoke from smoking” as a nuisance.
So my advice would be to gather up your evidence, doctors’ letters, supporting letters from neighbours and friends about the volume of smoke and frequency of smoking, then apply to Fair Trading for mediation. Your neighbour may refuse to attend mediation but, for you, it is a compulsory precursor to seeking orders at the Tribunal (NCAT).
If you are successful at NCAT – and there are no guarantees – and the smoking continues, the smoker may be liable for fines of up to $5500.
If you wait until the new laws come in at the end of this year (probably) the NCAT process will be a lot quicker and easier because the deeply flawed “paper” assessment of cases – where the person best at filling in forms wins – will be scrapped.
Meanwhile, here is the part of the Act that you should be asking your strata manager to send to the heavy smoker, asking him to cease and desist or face the consequences.
117 Owners, occupiers and other persons not to create nuisance
(1) An owner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a lot must not:
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
(b) use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
(c) use or enjoy the common property in such a manner or for such a purpose as to interfere unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.
(2) This section does not operate to prevent the due exercise of rights conferred on a developer by the operation of:
(a) in the case of a freehold strata scheme, section 28L of the Strata Schemes (Freehold Development) Act 1973, or
(b) in the case of a leasehold strata scheme, section 52 of the Strata Schemes (Leasehold Development) Act 1986.
(3) In this section, lessee of a lot in a strata leasehold scheme means a sublessee of the lot.
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.
Maybe you need to put a motion to the committee that Office-bearers should endeavour at all times to be polite in their dealings with owners and refrain from verbal abuse.
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.
Normally correspondence would be dealt with by the secretary – or is the chairman in a dual role?
Otherwise, why don’t you ask if you can address the meeting yourself?
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.
@Felix said:
How about a boat with an outboard motor attached parked in the unit’s space?One breach that does come up though is the tenant parking their vehicle in the visitors parking space since they have their boat in the unit car space.
Is the boat dangerous or unsightly? Does it smell offensively?
In any case, deal with the illegal car parking and you may solve the problem of the boat. The tenant is a parking thief and should be dealt with accordingly.
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.
Yes, it’s $100 plus GST. Interestingly, the penalties for some breaches are about to be doubled – but the penalty unit remains the same.
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.
If the space is deignated as a car park, then it should only have cars parked in it. If it is common property, then look at the by-laws. If it is lot property, then again, look at the by-laws, specifically relating to lot property and things that spoil the appearance of the area (like junk).
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.
Our esteemed sponsors Strata Choice have come up with the following suggestions:
Bellmont (www.bellmont.net – ask for Bill Moisidis), followed by, in no particular order:
– RHM Engineers– Demlakian Engineers– Strata Engineering SolutionsAny of whom you can reach by googling their names.Hope this helpsIf 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.
The threat to “go public” via the media won’t get much traction, if only because the developer knows the media doesn’t usually cover these things (not least because it’s often claim and counter-claim).
If however you map out a strategy for them – you will take the matter to Citizens Advice and then to VCAT and the Supreme Court, if need be, when it will then become a matter of public record that media organisations will feel secure in reporting on, your clear plan and sense of purpose will probably shake them up more than vague threats to do something some time in the future.
A Current Affair or The Project aren’t going to send a film crew around to look at a room the size of a car space.
They will, however, be interested in hundreds of people being ripped off by one of the city’s largest developers. Get your ducks lined up first, then start shooting (I mean figuratively, of course).
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.
You have a very strong claim on several fronts. The Victorian Owners Corporation Act says the Owners Corp is allowed to set up metering for the provision of services to common property (Schedule 1, 3.4).
It also requires the initial owners to act “in the interests of the owners corporation” while they are owners of the majority of the lots.
If you don’t want to waste money pursuing them through the courts, flip the confrontation. Tell them that, if you fail to reach a reasonable agreement, you will be cutting off the electricity supply and if they don’t like it, they can sue the Owners Corp. Check with a lawyer but it looks like you have a number of instances where they have acted wrongly
68. Obligations of initial owner
(1) Subject to sub-section (3), the initial owner of land affected by an owners corporation must act honestly and in good faith and with due care and diligence in the interests of the owners corporation in exercising any rights under this Act.
(2) Subject to sub-sections (3) and (4), the initial owner of land affected by an owners corporation must take all reasonable steps to enforce any domestic building contract (within the meaning of the Domestic Building Contracts Act 1995) entered into by the initial owner in respect of land in the plan of subdivision providing for the creation of the owners corporation.
(3) Sub-sections (1) and (2) apply to an initial owner only while the initial owner is the owner of the majority of the lots affected by the owners corporation and only until the end of the period of 5 years following the registration of the plan of subdivision.
(4) Sub-section (2) applies only to the enforcement of a breach of contract— (a) to the extent that it relates to the common property affected by the owners corporation; and (b) of which the initial owner is aware or ought reasonably to be aware.
(5) In this section “initial owner” means the person who was the applicant for the registration of the plan of subdivision.
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.
@Merton Kidd said:
As the developer/builder have long gone taking their profits with them, is it possible to sue the independent certifier engaged by them, especially if their is evidence that what was certified clear didn’t comply?The certifier should have professional liability insurance – so they might be worth pursuing. But it is possible that they did a “paper survey” – i.e. they made sure all the contractors had signed off on their work, possibly without even setting foot in the building. The surveyors can then say they acted in good faith on the evidence that was available.
That means you then have to pursue the contractors who will, in all likelihood, declare their firm insolvent within hours of receiving your lawyers’ letter only to reopen next day under under another, very similar, business name.
Getting back to the certifier – if you can prove they knew the work wasn’t compliant, then you’d have a case. Talk to an experienced strata lawyer. Otherwise, you might be better off saving your money for the repairs.
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.
@PeterC said:
I am reminded of A Merchant of Venice. Just think of the electricity as blood.I think what Peter means (apart from the quality of mercy not being strained) is that you could tell them they can have the room but you will be putting a meter and timer on the electricity.
Oh, and you might warn them that work on the distribution panel – for OWNERS CORP electricity – could result in electricity outages at random times for unforseeable durations.
I don’t think it would be possible to go in too hard on these crooks. They will threaten to sue, of course, and try to warn the gentler souls in your building that they could lose their homes.
But your response must be: “Please do – let’s get this matter into court where the truth can be heard, published and broadcast.”
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.
I’ve never come across this specific situation before but I have seen circumstances where developers have pushed through agreements that were highly advantageous to them … and then lost in court. The chisellers who retained a one square metre space in a new building’s lobby so they could rent it for an ATM spring to mind.
I am not a lawyer and I know even less about Victorian law than I do about NSW legislation. But I did find this in the Victorian Owners Corporation Act.
5. Owners corporation must act in good faith
An owners corporation in carrying out its functions and powers—
(a) must act honestly and in good faith; and
(b) must exercise due care and diligence.I think you would have a pretty strong argument that the OC, no doubt due to ignorance and under undue influence from the developer, acted neither in good faith in regard to the peppercorn rent nor with due diligence with regard to the electricity supply. It’s also arguable whether or not they acted honestly.
Proving the point could lead to a messy and expensive legal battle … or you could just tell my colleagues at The Age who, I’m sure, would love this story.
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.
The new law will prevent strata managers and rental agents (and others who makes a living from the strata scheme) who are not owners from being on the committee. If they are owners they can still stand for election. Other non-owners who are nominated by owners can stand for election.
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.
Come up with a set of protocols and propose them as a motion for your next strata committee meeting (you can propose and speak to motions even if you aren’t on the committee).
Get as many owners involved in the discussion as you can so the committee can’t dismiss it as a one-man concern.
It doesn’t have to be a battle – just some sensible acceptable rules about where the cameras are needed and what they are for. If the strata committee won’t play ball, this is something you should consider as a motion for a general meeting.
Ironically, for someone concerned about privacy, Observer originally not only had his real name but his email address as his Screen name too. Please, folks, you can give yourself any screen name you like – please don’t use your real names as that can identify not only you but the people you are complaining about. NB, Observer: I changed your screen name but the Username you log in with is still the same.
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.