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Just to add my two cents worth, Susan has lost the vote but perhaps not the battle. She and the other dissenting members probably have the numbers to call for a new general meeting (one quarter of unit entitlements) to force a discussion about whether or not a special levy is required. They could get a strata loan, for instance.
However, this time, they would be advised to hoover up any proxies they can get among those similarly alarmed by an $8k special levy.
Having said that, the Owners Corp has a legal responsibility to maintain and repair and this is exactly what happens if previous owners haven’t been putting aside money in the sinking fund.
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There is no comparison data available … but there should be.
However, given your description, I would say that your residents’ ANNUAL levies should be between 0.7 and 1 percent of the value of their property.
Hope that helps.
Meanwhile, maybe we will make that a flat chat project for next year. Watch this space (as I probably say way too often).
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I too am becoming discouraged by some of the decisions coming out of NCAT which seems to be even more anti-individual than its unlamented predecessor, the CTTT, in its “Send In The Clowns” days.
As soon as I get back to Australia, I plan to start asking the Attorney General’s office how they can justify some of the stupid, unfair and ignorant decisions that have been coming out of this department that now comes under their aegis.
If any of you have any examples that you think are beyond reasonable explanation, please drop me a line, either online or via mail@flatchat.com.au and I will get back to doing what we started in Flat Chat 11 years ago – kicking ass and taking names.
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I’m guessing here but I would say your remedy lies with the local council who should have been consulted before either project was started. Changing the drainage profile of a multi-dwelling scheme is a pretty serious matter and the council may order the OC and neighour to do something about it.
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It’s not up to you to prove that it is it’s up to them to prove it’s not.
A simple motion that the owners corporation agrees to abide by local council zoning, specifically in relation to short-term letting as defined by the Residential Tenancies Act and interpreted in recent decisions of the Land and Environment Court, is sound, legal and all-encompassing.
If they try to knock it out as incompetent, tell them that you will use that entirley bogus decision as the basis for a motion at NCAT to have the entire Owners Corp replaced by the statutory appointment of a strata manager. That strata manager need not consult the EC (which will be stripped of its powers) and will probably play by the book – meaning any other little lurks and perks will be a thing of the past.
It’s their call – obey the law or face very serious consequences to their daily lives.
By the way, the more complicated and legalistic you make the motion, the easier it will be for them to pick holes in it. Keep it simple!
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I’d refer you to Whales’s answer regarding the Owners’ Corps responsibility to maintain and repair common property.
Regarding repairs to lot and personal property, this fall more under common law than strata law. To put this simply, someone screwed up, either actively (they had an accident) or passively (the didn’t maintain their property or equipment) and that cause d a flood that damaged your property.
If the upstairs owner or tenant (or both) is at fault, you should be sending them a bill for the damages. If they doin’t have insurance – that’s too bad …that was a gamble the took and it didn’t pay off.
And even if the OC is liable for repairs, they too should be claiming against the the person who caused it.
So you and your EC need to realise that you are on the same side and work out the most effective way of getting compensation for everyone concerned.
It’s only when the culprit refuses to pay or can’t pay that your insurance should kick in. And if the Owners Corp refuses to fix common property, threaten to run them through NCAT and see what the reaction is.
Having said that, many insurance companies will just pay small claims themselves on a swings and roundabouts basis because it is cheaper to do that and count on other insurers doing the same, than it is to fight every claim in court.
Like bad umpiring decisions in cricket – it evens out eventually.
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Section 138 of the Act defines failure to act as being after two months have passed. That would be a guide, though hardly definitive.
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WE call this “brat dumping” and there is no reason you should have to put up with it as it is almost certainly breaching your by-laws, strata law and Environmental Protection laws.
Have a look at this factsheet, for starters. And have a look at this one (scroll down to the section on Noise Abatement).
According to this factsheet, noisy music has to be turned down by 10 pm. If they don’t, the miscreants could face noise abatement orders from the police and seizure of equipment.
I don’t know the details of WA strata law but I think you could go after both the residents of the unit for their behaviour and the owners of the unit for allowing it to happen.
Also, what do your by-laws say about nuisance?
Probably too late to speak to a strata lawyer but I would if I could.
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So NCAT refused your application for the appointment of a statutory manager?
Considering this is one of the worst cases of EC incompetence, illegal behaviour and action bordering on corruption that I have come across in 12 years of writing about strata, I think it’s time the “great and the good” in your building were brought to book.
They are clearly holding on for the dreadful day when the old guard kick Clover out of Town Hall and their mates can get your building re-zoned.
I would certainly be appealing the NCAT adjudication at a District Court, making sure that the Press was alerted when all these fine upstanding people are called to account for their blatant disregard of strata law and council zoning.
It’s time someone put a spoke in their wheels.
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@Costa said:
The reply I usually receive … from both the Executive Committee and Strata Manager, is that the emails and conversations between them are private emails and conversations between individuals.This is, of course, nonsense. But a politely worded letter to them saying that, as their correspondence is all “private” you don’t expect to see any items on the annual accounts for payments for correspondence, stationery or telephone calls. And if there are any such items on previous accounts, query them and say you want to exercise your rights to view the correspondence.
If the strata manager is a member of Strata Community Australia, you might contact them for advice about how to deal with this breach of duties in the long term.
If the strata manager isn’t a member of SCA, you need to ask why the hell not.
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@gtyk said:
The strata has no power to fine him. So there is no impetus to stop for him …I’ve told the strata that they have an occupational health and safety obligation to me, but they keep on saying there is nothing they can do.
This is not an OHS issue – it’s about residents not causing a nuisance to other residents and the Owners Corp has a duty of care to step in if need be.
Have a look at Whale’s answer No2 above. Now tell your EC that you plan to take them to NCAT if they won’t do anything, maybe that will convince them.
If you have a “no nuisance” clause in your scheme’s by-laws, your EC should be issuing a Notice To Comply.
Assuming there isn’t any such by-law, they should be pursuing orders at NCAT under section 117 of the strata Act (below).
It says residents may not “use or enjoy” their lot or common property “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).”
You can read all about the process for getting NCAT orders HERE (scroll down to the NCAT Orders section). And, as I said, the process for compelling the owners corp to pursue this in Whale’s answer above.
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.
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Every time a common property key wanders off with a former resident, the security of your building is reduced. That’s why Owners Corps demand a deposit that you can then pass on to your tenants.
I really don’t see the problem here – it’s costing you nothing and its preventing the security of your and other owners’ homes from being compromised.
If your tenants can’t be trusted to return the key, maybe you are choosing the wrong kind of tenant.
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