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Taking City of Sydney (the council with the most strata schemes) as an example, their website and forms require “verified consent from all of the registered owners” before a DA can be submitted.
Now, the Owners Corp is not the registered owner so it seems like there may even have to be a unanimous agreement for a change of use DA (although I could be wrong) but, at the very least a special resolution.
Also, Note 6c on the City of Sydney DA form says an application for a DA from a strata scheme must be accompanied by a “copy of resolution or minutes showing that a special resolution has been passed at a general meeting of the owners corporation that specifically authorises the change to common property.”
Any change of use would have an impact on common property so, again, at the very least a special resolution would be required.
Also, I suspect you would have to change your by-laws to accommodate short-term letting, so there is another special resolution requirement.
I would say that if your secretary puts this motion to a meeting and it isn’t as a special resolution you should move to have the motion removed from the agenda as it is incompetent and a breach of strata law.
A smart EC would get some legal advice before pursuing this.
Other councils may have other rules but they tend to be standard and governed by the Local Government Act.
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The normal process for pursuing complaints of this kind is by approaching your landlord and asking them to solve the problem However, there are many circumstances under which this would not be appropriate or possible and tenants do have rights to take up issues at the Tribunal themselves.
Mostly these fall under section 138 of the Act to “resolve a dispute or complaint about an exercise of, or a failure to exercise, a function conferred or imposed by or under this Act or the by-laws in relation to a strata scheme” and to resolve a dispute or complaint about “the operation, administration or management of a strata scheme under this Act.”
With that in mind, it is entirely appropriate, therefore, for tenants to write to the Owners Corporation and ask them to fulfil their obligations under the Act which include enforcement of their by-laws. It has, unfortunately, become common practice these days for executive committees to characterise noise complaints as disputes between neighbours and nothing to do with the Owners Corp. This is self-serving nonsense and should not be accepted either by owners or tenants.
If you are a tenant and you have a valid noise complaint against another resident, you are entitled to ask the EC to intervene directly. If they decline to do so you can apply to Fair Trading for mediation yourself. If you are feeling particularly bolshie, you can apply for mediation and possibly an order compelling the OC to take action.
Regarding meetings, if that’s the route you prefer to take, get an owner who is also affected or is aware of the issue to raise it.
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Just when I think I have read everything …
These works are not only in breach of by-laws but are probably breaches of council planning regulations. They may also be a threat to the structure of the buildings as a whole.
Working backwards, if they want to keep their cellars, you want your neighbours to
a) guarantee the safety of the work
b) get council approval for the work
c) accept ongoing legal responsibility for the cellars and the floors, via a specially drafted by-law
d) compensate other owners for the value of the common property they have grabbed
e) compensate the owners corp for all fees and charges related to putting this right, including drafting of by-laws, building engineering checks and legal fees.
Failing any of the above, you need to get NCAT orders requiring them to reinstate the floor and underfloor area to their previous condition.
By the way, this is not a choice for the Owners Corp: you have a legal duty to look after common property and that means sorting this mess out. You don’t need to find out what the building code is – they do.
I would get very heavy, very early on this.
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The great thing about this by-law is that it prevents the casual acquisition of pets but doesn’t prevent responsible pet owners from having one if they are prepared to jump through hoops.
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This is not as specific as the ACT regs but I think it may be effective. Add the extra cost to the owner’s levies notice and let them take you to NCAT to have it overturned.
Here is what I think may be relevant …
63 (4) Work that is duty of owner or occupier to carry out
An owners corporation may carry out work that is required to be carried out by a person who is the owner, mortgagee or covenant chargee in possession, lessee (or, in the case of a leasehold strata scheme, sublessee) or occupier of a lot in order to remedy a breach of a duty imposed by Chapter 4 and may recover the cost of the work from that person.It’s not exactly the same, obviously, but it does establish the principle that the OC can charge the owners for work that they should have done.
As I said, let them chase you to NCAT if they don’t like it.
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@Whale said:
I don’t know what Jimmy’s working on, but as I’m all optioned-out and this post is becoming epic, this will be all from me; good luck.
At he very least – this will make a great Flat Chat column but I am speaking to our legal sponsors about running with it.
In any case, Whale and I seem to agree this is worth taking further and having another swing at it.
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@Wolf said:
Just as an additional query – the EC said to me that I should have requested their permission to have a dog before I purchased the property.Is this an accepted procedure and would this entail a prospective purchaser contacting the strata managing agent to ask them to forward a pet application to the Owners Corporation?
Another piece of arrant nonsense. How, in the relatively short process of buying or bidding for a unit, does a prospective purchaser get an owners corporation of which they are not yet a member to even hold a meeting? More obfuscation, straw clutching and kite flying. This little bunch of know-alls has decided that strata law doesn’t apply to them and your strata managers, knowing what side their bread is buttered on, is aiding in this delusion. Time they had a wake-up call.
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Wolf said
The EC’s WRITTEN response was … dogs were inappropriate in apartments
According to whom? There is a stack of evidence to the contrary. This is an opinion – it certainly isn’t fact.
the dog would bark and make noise
Are they soothsayers? How can anyone know for sure how an animal is going to behave. Even if this was an issue, there are aspects of the Act that cover even dogs that have been given permission but turn out to be noisy.
the dog will soil or damage common property
Not if it’s properly trained it won’t – and if it does, there are by-laws to deal with it.
Occupational Health and Safety concerns
Such as? I was once asked to advise on an attempt to ban pets because they would increase risk if there was a fire. I pointed out that by far the biggest cause of doestic fires is people cooking or smoking then falling asleep when they are drunk. Ban smoking and drinking before you even look at pets, I said. The move was defeated.
potential dog smell
Potential? As in, here is some more soothsaying.
Being a community minded building with elderly and children and veggie gardens, a dog was unsuitable
Nothing bring people together in buildings quite like dogs – they almost become a shared facility. lonely old people love them and kids learn how to deal with animals in a safe environment. Just keep the dog oput of the veggie patch
wear and tear on carpet in common property
Yeah, let’s ban women in stiletto heels first. And muddy work boots … and kids trailing muck from the veggie patch.
the dog would frighten people
These people frighten me. More Soothsaying – who’s living there, the cast from Macbeth?
strata insurance liability would be affected
That is just a lie plain and simple.
concerns about providing external service providers with keys to walk to the dog
Don’t forget the postie … and the meter readers … and bin men. Actually, the crime rate among dog walkers is the lowest among any service providers. (OK, I just made that up but it’s no more fanciful than some of these objections).
Should I even bother sending in another dog application or just give up completely?
All of this is just them clutching at straws – and it doesn’t matter how many straws you clutch, the arguments become more bogus, not less. The disappointing thing is that our Tribunal members seem to have have learned NOTHING in the past 10 years. If you can’t rely on by-laws when you buy a flat, what’s the point.
Watch this space … Flat Chat is on the case.
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I agree with Missy about the noise diary being a detailed note of time, area of theapartment and nature of the noise. The names of any witnesses would also be helpful.
Regarding measuring the level of noise, the complaints system can be a game of “pass the parcel” until the music stops. Different councils approach this differently and so do different police stations.
However, in most states, strata law says you must not disturb the peaceful enjoyment of residents’ lots. It says nothing about the level or the nature of the noise. All you have to do is prove that the noise would disturb a reasonable person going about their daily lives and you have a case to take to Fair Trading and the Tribunal.
And contrary to what you have been told, the tribunal can accept your recordings of excessive noise. Something on your smartphone, with a voice-over commentary about the time and date from you, is in some ways better than highly sensitive professional equipment.
Your EC has a duty of care to deal with this but if they refuse to issue a Notice To Comply, as way too many do these days because they are lazy, ignorant or saving costs, you can apply through Fair Trading for compulsory mediation followed by orders at NCAT.
However, this carries so much more weight with the EC backing you.
On a general note, councils and police will rightly say that there are mechanisms within the strata acts for dealing with this. That’s why they don’t get involved until someone has broken the law.
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Normally I would agree with Whale that everyone should pay their share of levies related to common property expenses, regardless of whether they use them. However, that assumes that each lot’s Unit Entitlements have been calculated to roughly reflect the value of the lot, including facilities and shared access to usable common property (or not).
In this case, they haven’t. Everyone pays the same levies, regardless of whether or not they have a garage. So, while Whale is right to say that everybody should pay their share, the shares have been divided unfairly to begin with and I believe the lot owner is entitled to find a way to even up the burden (as the Act allows).
My suggestion that owners should make a Section 145 application to remove the financial burden of a special levy presumes that at least two of the three other owners agree. This would be my preferred option as a pragmatic response to this dilemma – the final arbiter on this would be an NCAT adjudicator who would at least be independent. If not, tiny could go it alone.
Everything Whale wrote about sorting out the sinking fund and other finances first, and the garage doors later, is spot on. But it sounds like none of the other three are interested in paying more in general levies so it could require a lot of horse-trading to get the scheme’s finances on an even keel.
Peter C’s comments have made me wonder if the garages are part of the lots or allocated common property. If it is the former, you might have an argument for saying the garage doors are the individual lot owners responsibility (although I’m not sure if that would stand up to a challenge in the Tribunal).
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Under strata law, every scheme is required to have a 10-year sinking fund assessment which they need to review every five years. Does yours? This is a survey of all the elements of common property, how long they have to go before they will need repair and then how much that will cost.
Oddly, there is no requirement in NSW to fund that projected spending but failure to have any plan to do so would be one of the elements considered if anyone ever mounted an action to replace the owners corp with a strata manager.
The other option is that a strata scheme can apply for loans rather than raising special levies.
The Admin fund can borrow money from the sinking fund but it has to be repaid within six months (I think), although many schemes get round this by recycling the loan every time is falls due.
I would put a proposal to your next general meeting that you initiate a sinking fund assessment and that you decide in advance that strata loans will be sought rather than special levies if any repairs are required and there is no money in the sinking fund.
However, I believe banks are very open to extending your mortgage if you do get hit with a special levy that you can’t pay, as this protects their investment.
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My first instinct is to ask how come your UEs are the same when three people have a lock-up garage and the fourth doesn’t. Sounds like whoever created the original plan bothced it,
That aside, there is no way you should be paying for the new garage doors, the question is how to get around it.
One way would be for your Owners Corp to pass a by-law saying that all owners with garage doors are individually responsible for their repair and maintenance (with conditions attached, such as appearance, etc). This would pas at a general meeting even if the fourth owner objects as special resolution require that no more than 25 percent of votes (unit entitlements) vote against it. Creating a by-law would, however, cost a little money.
Another option would be for the owners collectively to make an application to the Tribunal (NCAT) under Section 145 of the Act for a variation of the payments of levies (in this case, a special levy).
If you meet with any resistance to either of these plans, you could launch an action under section 145 yourself or, if you wanted to get really heavy, say you are going for a Section 183 reassessment of Unit Entitlements. However, that might be more trouble and cost than it’s worth.
Having said that, if the value of your apartment is wildly different from all or any of the others, it’s something you should consider. And if so, your next call should probably be to an experienced strata lawyer.
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@rebekah20p said:
The EC have told me to contact the tenants managing agent (it think this is inappropriate) and continue with the police. Everywhere i turn for help i get directed elsewhere. Where does the buck really stop. Is it the EC?Why is approaching the rental agent inappropriate? Landlords have a legal responsibility to moderate the behaviour of their tenants and, if there is a proven breach of by-laws, then that is a breach of their rental agreement and they can be evicted.
I’m not saying that is something you should pursue as a first option but it’s one hell of a deterrent against future bad behaviour.
So what are your options? In your position, I’m assuming that the neighbours are not listening to you and you have evidence of, or credible witnesses to their bad behaviour.
You could ask your EC to set up a mediation – Community Justice Centres will do this for free – at which everybody gets to air their grievances and move on before it all gets out of hand. Participation is not compulsory but refusal to take part won’t look good for your neighbours if the conflict is escalated.
The Police are right in so far as this can get very ugly very quickly if you pursue AVOs. So if private mediation doesn’t work, I would ask the EC and/or the strata manager to issue a properly formulated Notice To Comply based on known or provable breaches of the by-laws.
These include behaviour of residents and their guests on common property and the right to peaceful enjoyment of your lot. The Notice to Comply must list the by-laws breached – and I’m taking a wild guess here but that might be the first time your neighbours have even seen them or been aware that they have to abide by them.
NB: A notice to comply is a warning, not a fine. It says stop breaching by-laws or you might be fined. No prior warnings are required and failure to comply can lead to substantial fines.
I would ask the EC/strata manager to back this up with a letter to the tenants, copied to the letting agent, explaining that a breach of by-laws is a breach of their rental agreement and they will expect any further breaches to result in action under terms of the Residential Tenancies Act.
I would ask the SM/EC to also send a letter to the Rental Agent, copied to the tenant, saying there had been complaints about the tenants and that the landlord has a responsibility under the Act to do something about this, either by asking the tenants to respect the by-laws or by evicting them if they fail to do so, under the terms of their Residential Tenancy contract.
Failure to act could lead to orders at the Tribunal (NCAT) and fines of up to $5500 per offence.
As for evidence, hearsay and suspicions are not enough. You need witnesses who are prepared to sign statutory declarations and speak to them at a tribunal, if need be.
Verbal abuse is a form of assault and getting evidence couldn’t be simpler. Your smartphone will have a recording option on it. When you are approached by these people, take out your phone, switch on record and say in a loud voice “[Neighbour’s name], I am recording everything you say and will do so whenever we meet.”
I would put money on them saying that you can’t record them without their permission. This is a myth. You don’t need verbal or written permission from people to record their voices, just their awareness that you are doing so. It is up to them whether or not they keep talking after that.
Whatever you record them saying will then be admissible evidence with the police, courts and the Tribunal. In reality, it will probably stop the abuse and make them realise that you aren’t to be messed around with.
As for the buck being passed around, breaches of by-laws are the province of the EC and breaches of the law are a police concern.
I would start with the EC and tell them that doing nothing is not an option – they have a duty of care and if they won’t live up to it, you will take them to the Tribunal, under section 138 “failure to exercise a function conferred or imposed by or under this Act or the by-laws in relation to a strata scheme.”
Again, if they are smart, they will at least try to arrange a mediation. However, tread lightly – you don’t want to end up forcing your potential allies (the EC) to line up with your neighbours against you.
Also, ask your EC to install security cameras at your mailboxes, to deter current and future miscreants.
Finally, before anyone gets on their high horse about my victimising tenants, my preferred option is for mediation, for everyone to sort it out and move on.
However, I think it’s entirely appropriate to warn tenants that breaching by-laws has serious consequences. Why would anyone support bad behaviour by any resident?
It’s too bad for serially abusive tenants that they could lose their homes for behaving badly. But strata communities require mutual consideration and respect. I just wish the same sanctions were available for use against serially abusive owners.
The simple fact is that some people shouldn’t live in strata and that’s pretty much all there is to it. We shouldn’t lower our standards because they aren’t prepared to raise theirs.
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