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@Cosmo said:To be valid any by law would have to be enacted before or at the same time (contemporaneously) as the installation. Owner’s who installed whirlybirds and could convince a tribunal that at the time of installation they were not advised of or aware of the whirlybird’s maintenance being their responsibility would get a ruling in their favour.
Precedence has nothing to do with it. If a previous EC was incompetent, then you can’t expect subsequent ECs to be stuck with having to repeat erroneous actions or lack of actions.
If the person who installed the first whirlybird (roof-mounted, self-propelled extraction fan*) on common property without permission still owns the property, then they should be subject to the same rules.
If the original installer has since sold, that installation is now part of common property.
The person installing the new dryer still has to abide by strata law (rather than by-laws, in this case) which say that you can’t change common property without permission. Claims of precedence won’t fly. The Owner’s Corp can order him to remove the whirlybird or accept their terms for keeping it.
As for the first whirlybird, if its current owner won’t accept responsibility for it under the same terms as the other (new) guy then they can just insist that the original dryer be removed.
The law is the law. Precedence counts for little and even less if there is a strata law breach involved.
*I only discovered what a whirlybird was later and edited this so it makes sense – JT
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Unless I am reading the regs wrong, common property extends to 5 metres above ground level where there is no roof. Anything withng that airspace would have to be maintained.
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I assume the “strata licensee” to whom you refer is the principal of the strata management firm.
If so, you might take one final swing at this by telling the strata manager that they have failed in their statutory duties and have therefore breached their contract and you will be urging the owners to seek a new SM on that basis
or,
Tell them that unless they fix all the problems according to strata law, you will find a strata manager who is prepared to go with you to NCAT to seek statutory appointment as strata manager, taking over all the duties of the Owners Corp until everything is sorted out.
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The simple answer is to let the owner attach a motor provided that, under the special resolution required, they accept ongoing responsibility for the maintenance of the motor and the door. If they aren’t prepared to do that, let the door stay exactly as it is.
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OK, in my original answer I was straying into difficult waters and I’m now reluctant to be too specific. You need to look at the original strata plan and even then, it may not be a reliable guide. Your by-laws, if any are relevant, may be a better guide.
Pre-1974, the line between common property and lot property was taken to be in the middle of external walls. That meant balconies were part of lot property (unless otherwise signified) so balcony doors that were set into external walls were taken to be lot property, as was the wall attached to the balcony.
So where does that leave you and your windows? I’ve had a look at NSW Land & Property Information’s documents on this issue (see below) and it really depends on where the windows sit in relation to the midpoint of the wall. Contrary to what I said earlier, it may well be that the windows were and always have been common property.
So, for the sake of argument, let’s assume that the windows are common property. That means the lot owner has gone ahead and changed common property without permission and could be asked to pay for its reinstatement.
However, if I am reading this correctly, complicating the issue in this case is the fact that the same company that installed the windows “informally” is being contracted to install windows for the rest of the building. So who is responsible for their repairs etc to the original windows?
I would be tempted to ask the window company to include the “informal” windows in its overall warranties, starting from the date of the new contract. You can’t, however, remove that lot owner’s liability for their share of the installation of windows to the whole building. Only NCAT can do that.
So, in the interest of being fair to everyone, this is what I would propose:
1) The window installers accept that the warranty for all the windows starts on the completion of the work. Also, they and not the Owners Corp would be responsible for refunding monies paid to the “informal” owner. If they refuse, then you might consider looking at other installers.
failing that …
2) The lot owner who installed the windows formally accepts responsibility for their upkeep and, in return, the Owners Corp agrees to apply to NCAT to reduce their levies accordingly, so that they aren’t paying their share of the windows for the rest of the building.
failing that …
3) You go ahead with the installation and let the lot owner apply to NCAT, at their own expense, for a variation of the levies to reflect the money they have already spent. In return, you will submit to NCAT that the owner has to take responsibility for their upkeep.
It’s a mess but remember that this would not be the case if the “informal” lot owner hadn’t gone ahead and replaced their own windows without OC permission. It’s not really up to the OC to make too many concessions but you should try to be flexible in the interests of good community relations in the future.
Meanwhile, this is what Planning NSW says on the subject of pre-1974 lot boundaries:
The original legislation provided that the boundary between separate lots or between lots and common property was the centreline of the dividing structures being walls, floors or ceilings. Upon the commencement of the new legislation on 1 July 1974 these boundaries, for previously registered plans, moved to the inner face of the walls, the upper surface of the floors and the lower surface of the ceilings. The structure then became common property. Any walls or other structure which are between separate parts of the same lot remain as part of the lot and are not common property. This occurs even if the structure is shown on the plan. The most common example where these provisions create an issue is the wall within a lot between the living area and a balcony; in this case the wall and any door or window will remain as part of the lot and not become common property.
In some circumstances the plan may show a note indicating that the boundary is the centre (or face) of a structure. In this case the boundary remains in that position and is not relocated as described above.
With regard to plans registered prior to 1 July 1974:
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Any structures between separate parts of the same lot are part of the lot and are not common property.
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A structure between separate lots or between a lot and common property is common property.
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If the plan described by a note the location of a boundary relative to structure the boundary was not relocated.
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It sounds as if due process was not followed in the election of EC members and you may be able to challenge it on that basis. The AGM is required to first establish how many members there should be on the EC and then call for nominations.
Also, people who are standing for election may not nominate others for election (although they can nominate themselves).
If the other members were not present and there was no written self-nomination. who nominated them? If it was the other two, then their nominations were invalid
Validly elected EC members can only be removed mid-term by a special resolution at a general meeting. That would require a 75 percent vote of owners voting in person or by proxy at a general meeting.
But you could demand another General Meeting (if you can raise one quarter of the votes of all the other owners) or even pursue action at NCAT under section 153 (see below). However, an adjudicator would have to be satisfied that someone was adversely affected by this and that adherence to the Act would have resulted in a different result.
So your task would be to gather evidence that some people who wanted to be on the EC were prevented from joining and that they probably would have been elected if the provisions of the Act had been followed.
By the way, the Owners Corp is required to keep records of voting papers for EC elections for five years. It would be interesting to see who nominated whom for your last EC election.
This is what section 153 says:
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.
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@mikobrand96 said:
Allegedly, some strata managers are making huge profits, charging for things that don’t exist and some make deals to overcharge owners corp.I am reminded of that old quote, “never attribute to malice (or dishonesty) anything that can just as easily be ascribed to stupidity.”
Propose at the next EC meeting or AGM that a sinking fund assessment be prepared, as per the provisions of Sections 75(2), 75A and 76 of the Act (see below).
If the EC refuses or prepares an assessment that is clearly inadequate, then you can go to NCAT and ask it to order the EC to do so under section 138.
This is what the Act says:
75 Estimates to be prepared of contributions to administrative and sinking funds
(2) An owners corporation must, at each annual general meeting, estimate how much money it will need to credit to its sinking fund for actual and expected expenditure:
(a) for painting or repainting any part of the common property which is a building or other structure, and
(b) to acquire personal property, and
(c) to renew or replace personal property, and
(d) to renew or replace fixtures and fittings that are part of the common property, and
(e) to replace or repair the common property, and
(f) to meet other expenses of a capital nature.
Note. Expenses of a capital nature would include expenses in relation to major repairs or improvements to the common property or personal property of the owners corporation, such as painting of a building or replacement of roofing, guttering or fences and the like.
(3) When estimating amounts needed to be credited to the administrative fund or the sinking fund the owners corporation must have before it, and take into account, a statement of the existing financial situation of the strata scheme and an estimate of receipts and payments.
(4) In estimating amounts to be credited to the sinking fund, an owners corporation that is required to prepare a plan under section 75A is to take into account anticipated major expenditure identified in the plan for the 10-year period to which the plan relates.
(5) An owners corporation of a large strata scheme must include in the estimates prepared under this section at an annual general meeting specific amounts in relation to each item or matter on which the owners corporation intends to expend money, or on which the owners corporation is aware money will be likely to be expended, in the period until the next annual general meeting.
75A Owners corporation to prepare 10-year sinking fund plans
(1) This section applies to owners corporations established on or after the commencement of this section.
(2) An owners corporation to which this section applies is to prepare a plan of anticipated major expenditure to be met from the sinking fund over the 10-year period commencing on the first annual general meeting of the owners corporation.
(3) The initial plan is to be finalised by the end of the second annual general meeting of the owners corporation.
(4) The plan is to be reviewed and (if necessary) adjusted no later than at the fifth annual general meeting of the owners corporation.
(5) An owners corporation to which this section applies is to prepare a plan as referred to in subsection (2) for each 10-year period following the period referred to in that subsection and is to finalise and review the plan in accordance with the requirements of subsections (3) and (4) at the corresponding annual general meetings in the relevant 10-year period.
(6) An owners corporation may engage expert assistance in the preparation of a plan under this section.
(7) The regulations may extend the operation of this section to all owners corporations or to such classes of owners corporations established before the commencement of this section as are specified in the regulations.
(8) A regulation referred to in subsection (7) may make necessary modifications to the application of any provision of this section to an owners corporation established before the commencement of this section.
76 Owners corporation to set levy for contributions to administrative and sinking funds
(1) The owners corporation must determine the amounts to be levied as a contribution to the administrative fund and the sinking fund to raise the amounts estimated as needing to be credited to those funds.
(2) That determination must be made at the same meeting at which those estimated amounts are determined.
(3) The owners corporation must levy on each person liable for it such a contribution.
(4) If the owners corporation is subsequently faced with other expenses it cannot at once meet from either fund, it must levy on each owner a contribution to the administrative fund, determined at a general meeting of the owners corporation, in order to meet the expenses.
(5) A contribution is, if an owners corporation so determines, payable by such regular periodic instalments as are specified in the determination setting the amount of the contribution.
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Unless there is a by-law to that effect, I believe in a pre 1974 building the windows may not be common property but the responsibility of individual lot owners. [NB: In light of further research, I reckon it is more likely that the windows are, indeed, common property. See item 5 below – JT]
If the windows are common property, and the owner who arranged the replacement of the windows is still there, they are responsible for the repair or defect rectification of the windows – that has nothing to do with the Owners Corp as they had nothing to do with the replacement of the windows.
In this case, the Owners Corp should formalise an agreement ASAP that the owner and subsequent owners have responsibility for the windows.
If the owner who had the windows replaced has moved on and sold, then the Owners Corp is responsible for the windows as their ownership has defaulted back to common property (again this only applies if all the windows have been deemed to be common property).
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I’m with Whale on this one. “Routine” is one of those dangerous words that can mean everything or nothing.
I am told that by far the most common problem in new buildings is waterproofing of bathrooms simply because it is relatively difficult to get it absolutely right and the damage done from water leaks and the hassles involved in getting them fixed are a nightmare.
Isn’t it better to have an over-zealous restriction on people who “only want to change the tiles” and end up flooding apartments to the side and below, than to have a free-for-all that let’s renovations through on a nod and a wink and then expects neighbours to deal with the consequences if it’s not done properly?
Bathroom renovations are like a second marriage, a triumph of hope over experience.
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@mikobrand96 said:
… now i have been labelled a trouble maker. All because I am interested in where the money is going.Welcome to my world.
When relationships are cosy and things are done on a nod and a wink, it’s very irritating for those concerned when someone new comes along and lifts the stone to see what’s wriggling underneath.
Of course, it’s a different mater when a problem becomes obvious later on and everyone runs for cover.
You are entitled to know how and why your money is being spent but just back off a little and make it seem more like an inquiry and less like an accusation.
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Unless you knew that there was going to be noise from across the street and neglected to tell your tenant, it’s probably not your problem. It is incumbent on anyone who has an issue with noise to make sure the place they buy or rent isn’t likely to affect them.
However, I would pass on this link and/or this phone number 133 220 and tell them to call Fair Trading. Tell them you will cooperate with any hearing or discussion on the question of rent reduction and you will abide by any decision Fair Trading makes officially on the issue.
And tell them you will be interested to discuss any proposals for noise reduction they want to make at their expense.
But let them make the running. There are official processes for this kind of thing so there’s no need for you to be reaching for the chequebook quite yet.
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The simplest way to get an answer to this is to ask the strata manager.
Bear in mind, however, that to ensure their charges reflect the amount of work they do, many strata managers have a basic annual fee but can charge for specific tasks. That way, a strata scheme that requires little attention can save money while others get charged according to the phone calls, letters and other work that they generate.
It may be that the SM has charged for organising the work but this has not yet been reflected in their accounts.
Or it could be that the work turned out to be trickier than anticipated and went over budget,
Or, less likely, they could be on the fiddle.
Ask.
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