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School holidays, long weekend, hot days that drive people away from their computers and on to the beach. We are but human.
On the other hand (and undermining my own argument) more than 6500 pages were read last weekend when we had more then 3200 unique visitors across two days. We’re still very much alive and kicking.
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I think the strata manager is right. I believe at that time the line between common property and lot property was taken as the mid point of the external wall and so windows were considered lot property.
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And your suggestions are?
Sadly, we live in an age where there are people who feel that the definition of right and wrong is what you can get way with. In strata, that is compounded by a feeling by some people that their circumstances are special or that stupid things like by-laws don’t apply to them.
It only takes one or two such people to disrupt the amicable give and take of a civilised strata community. Who hasn’t parked their car in visitor parking for a brief period when it made sense to do so? The problem is the people I described above who feel entitled to do what they want when they want.
Yes, it’s a shame that we are all suddenly liable to be fined for parking over the lines (for instance) in our own car parks. But I would imagine council parking inspectors would not be being invited into strata schemes where everyone behaved reasonably and that’s the price we pay for living next door to antisocial a-holes.
However, it is something else we have to threaten the selfish sods with – “park illegally again and we’ll call in the parking wardens.”
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Before we go any further, let’s be absolutely clear on what has happened here and the consequences of any action you take.
Firstly, your upstairs neighbour has, without regard for strata laws, any relevant by-laws and the comfort of you, their neighbours, enhanced the value of his property to the detriment of yours.
If you pursue this to its logical conclusion, your upstairs neighbour will have to either rip up the tiles and lay properly insulated tiles or replace the carpet. For what it’s worth, I would not feel a smigeon of guilt if I were you and that was the result.
So what do you do? Firstly, check your by-laws to see if they have anything specific about removing carpets or installing hard floors. If there is such a by-law, then check to see in which way it has been breached then ask your strata committee to pursue the issue through Fair Trading and the tribunal (NCAT).
If there is no by-law, you can still pursue this on two fronts: unapproved interference with common property (the floor) and noise nuisance.
Since you are now pursuing a breach of strata law (rather than any by-laws) you need the executive committee to hold a meeting at which they agree to seek orders at NCAT. They will still need to have a mediation with this owner at Fair Trading but in the meantime you need to gather as much evidence as possible that there is a significant noise nuisance.
This would normally include statutory declarations from neighbours, visitors and strata professionals that they have heard excessive noise, as well as a noise diary – “loud footsteps heard at this time on this date” – and even recordings which you should be able to get through your mobile phone.
Meanwhile your committee needs to gather evidence that the carpet has been lifted and tiles with unspecified acoustic insulation has been laid (not hard if the upstairs owner has already said this happened).
Initially, it may be best if your strata manager and/or committee chair should sit down with the upstairs owner and explain the facts of life to them. They have breached either by-laws or strata laws (or both) and they can either remedy this the easy way or the hard way. The easy way is that you work out a plan to re-lay the tiles with proper insulation, or just carpet over them.
The hard way is that they engage a lawyer who will gladly fight tooth and nail at their expense, but at the end of the day they will still have to re-lay the tiles or cover them with carpet.
The reason I am so sure of this is that these days people are expected to know that they can’t just destroy the peace and quiet of their strata neighbours and if they didn’t know that, ignorance is no defence.
That said, if at all possible, try to resolve this amicably – maybe the upstairs owner could get compensation from the flooring firm for giving bad advice on insulation – but I wouldn’t concede an inch on this. They acted illegally and you are the victim – it’s as simple as that.
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@danni said:
I have successfully accessed our Strata Title Document that lists the bylaws that have been registered, I am at a loss at how I actually find the place where I request the bylaws themselves.You say you have found a list of the by-laws but not the actual by-laws? Is that correct?
If so, you may have to go into the lands office to see the records in person.
Otherwise, by checking your Strata Management Scheme issued when the scheme was first established, you should be able to firstly see what the bylaws that were accepted at your scheme’s first AGM were, then check the minutes of every other general meeting held subsequently and correlate the list of registered by-laws with the minutes of the meetings at which they were approved.
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Simply having permission to keep an animal doesn’t insulate the pet owner from responsibility. The Act already awards specific powers to NCAT adjudicators to issue orders in the case of permitted animals that then prove to be a nuisance (Section 151).
It’s a long and potentially tortuous process, and one with far from guaranteed success. But letting the owner know that there are subsequent sanctions available to the Owners Corp, may prompt them to take action.
By the way, only “entire” males spray. I would be reluctant to approve any cat for an apartment block unless it had been de-sexed.
This is what section 151 says:
151 Order relating to animal kept in accordance with by-laws
(1) An Adjudicator may make one of the following orders if the Adjudicator considers that an animal kept on a lot or the common property in accordance with the by-laws causes a nuisance or hazard to the owner or an occupier of another lot or unreasonably interferes with the use and enjoyment of another lot or of the common property:
(a) an order that the person keeping the animal cause the animal to be removed from the parcel within a specified time, and to be kept away from the parcel,
(b) an order that the person keeping the animal take, within a time specified in the order, such action so specified as, in the opinion of the Adjudicator, will terminate the nuisance, hazard or unreasonable interference.
(2) An application for an order under this section may be made only by an owners corporation, lessor of a leasehold strata scheme, strata managing agent, an owner, any person having an estate or interest in a lot or an occupier of a lot.
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I think you need to get tough with your EC and strata manager and tell them that if this doesn’t move forward quickly, you will pursue them through NCAT to fulfil their legal obligation to maintain and repair. If there are defects, they should be chasing that up. If you are out of warranty, then they should be looking at how to finance repairs, not how to avoid them
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According to his IP address, he’s in Sydney
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@Matt said:
Should caretakers wear uniforms … in other words a state sanctioned uniform in like NSW or Victoria.State sanctioned? I really don’t know what you mean. There’s nothing like that that I know of in NSW.
I think if the scheme is big enough and can provide two sets of uniforms for its employees, why not. I think a “look” that reflects the culture of the building is good but there are so many sub-contractors – cleaners, concierges, electricians, painters, joiners – that it would be hard to get a homogenous style.
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I would think at least the threat of compulsory appointment of a strata manager would shake things up. With land grabs, illegal parking (because of use of garage as living space) no records of meetings and improper accounting and banking procedures, I would put money on NCAT making this happen.
The good news is that any such application must include the approval of a strata manager who is prepared to take on the job. That means your friend can go to a strata manager, tell them what he is planning to do and they should help with formulating the application.
I wouldn’t worry about being ostracised. These incompetents are clearly running the show for their own selfish benefit and I wouldn’t want them as friends anyway.
Oh, and a quiet word to the council about the illegal conversion of a garage to living quarters and the extension of private property into common property should stir things up a bit too.
You friend sounds like they need someone to speak for them in negotiations with the other owners. The proposed strata manager may do this but it might mean a visit to an experienced strata lawyer.
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@dan3101 said:
I am on an EC in Sydney. With the above scenario what happens if they get a clear majority but not 75% at the EGM, does the EC then meet and decide whether to issue a notice to comply which favours a minority of the OC.The EC can meet and decide to do whatever it wants but they would be foolish to do so if there is a clear majority at the General Meeting that opposes them. In fact, a petition of 25 percent of owners can hve an item removed from the EC agenda before it is even considered. If you were really concerned about this, you would add an item to the general meeting agenda ordering the EC not to pursue this matter.
If the EC itself also votes as the majority of the OC and decides that the change is OK do they have to ignore their own vote and the wishes of the majority and still issue a notice to comply?
This is a bit confusing. If the EC is effectively the majority on the OC, why would they vote agaoinst themselves? In any case, the Executive Committee doesn’t have to issue a Notice To Comply on anything – unless they are compelled to do so by an order from NCAT or by a vote from a General Meeting specifically ordering them to do so. Even then, they can do as they please and wait until they have to face the music at the next AGM or are dragged before NCAT by an unhappy owner.
If the EC decide to follow their own vote and the wishes of the majority and not issue a notice to comply does the change to common property, in this case a door , just remain in limbo?
Yes. However, any owner can take an action at NCAT requesting that the Owners Corp be ordered to pass a by-law that it should have done as part of its duties.
Is this scenario dealt with in the act? If so could you please refer me to the relevant part?
This is a complex situation covered by many aspects of the Act including clauses on special resolution by-laws, changes to common property and orders that can be made by NCAT. There is nothing specific that deals with this particular scenario and there are other aspects that are implied, such as who has reponsibility for changes to common property when no by-law has been passed.
I’ve attached a few relevant clauses for you to look at but you have to try to understand their intent. For instance, Section 54 seems to be saying that the Owners Corp is responsible for maintenance of common property affected by a by-law but in fact, it is saying that if the by-law doesn’t apportion responsibility to the benefitting owner, then the Owner’s Corp has responsibility by default. In other words, it’s saying pass the responsibility or accept the consequences.
A final word of caution: If you are seriously in need of this level of legal knowledge, you should be talking to an experienced strata lawyer.
Here are some relevant clauses from the Act
Division 4 Special provisions for by-laws conferring certain rights or privileges
(1) This Division applies to a by-law conferring on the owner of a lot specified in the by-law, or the owners of several lots so specified:
(a) a right of exclusive use and enjoyment of the whole or any specified part of the common property, or
(b) special privileges in respect of the whole or any specified part of the common property (including, for example, a licence to use the whole or any specified part of the common property in a particular manner or for particular purposes),
and to a by-law that amends or repeals such a by-law.
(2) This Division does not prevent an owners corporation making a by-law in accordance with section 54 of the Community Land Management Act 1989.
54 By-law must provide for maintenance of property
(1) A by-law to which this Division applies must:
(a) provide that the owners corporation is to continue to be responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, the common property or the relevant part of it, or
(b) impose on the owner or owners concerned the responsibility for that maintenance and upkeep.
(2) Any money payable under a by-law to which this Division applies by more than one owner to the owners corporation or to any person for or towards the maintenance or upkeep of any common property is payable by those owners proportionately according to the relative proportions of their respective unit entitlements unless the by-law otherwise provides.
(3) To the extent to which a by-law to which this Division applies makes a person directly responsible for the proper maintenance, and keeping in a state of good and serviceable repair, of any common property, it discharges the owners corporation from its obligations to maintain and repair property under Chapter 3.
65A Owners corporation may make or authorise changes to common property
(1) For the purpose of improving or enhancing the common property, an owners corporation or an owner of a lot may take any of the following action, but only if a special resolution has first been passed at a general meeting of the owners corporation that specifically authorises the taking of the particular action proposed:
(a) add to the common property,
(b) alter the common property,
(c) erect a new structure on the common property.
(2) A special resolution that authorises action to be taken under subsection (1) in relation to the common property by an owner of a lot may specify whether the ongoing maintenance of the common property once the action has been taken is the responsibility of the owners corporation or the owner.
(3) If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance.
(4) A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless:
(a) the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and
(b) the owners corporation makes such a by-law.
(5) A by-law made for the purposes of this section:
(a) may require, for the maintenance of the common property, the payment of money by the owner concerned at specified times or as determined by the owners corporation, and
(b) must not be amended or repealed unless a special resolution has first been passed at a general meeting of the owners corporation and the owners corporation has obtained the written consent of the owner concerned.
(6) The provisions of sections 52 (3), 54 (2) and (3) and 55 apply to a by-law made for the purposes of this section in the same way as those provisions apply to a by-law to which Division 4 of Part 5 of Chapter 2 applies.
65B Owners corporation may grant licence to use common property
(1) An owners corporation may grant a licence to an owner of a lot to use common property in a particular manner or for particular purposes if the owners corporation has approved the granting of the licence by special resolution passed at a general meeting of the owners corporation.
(2) A licence may be granted subject to terms and conditions.
Note. Division 4 of Part 5 of Chapter 2 enables owners corporations to make by-laws granting exclusive use rights and special privileges (including licences) in relation to common property.
Part 4 Orders of Adjudicator
Division 1 General power of Adjudicator to make orders
138 General power of Adjudicator to make orders to settle disputes or rectify complaints
(1) An Adjudicator may make an order to settle a dispute or complaint about:
(a) 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, or
(b) the operation, administration or management of a strata scheme under this Act.
(2) For the purposes of subsection (1), an owners corporation or building management committee is taken to have failed to exercise a function if:
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
(3) An Adjudicator may not make an order under subsection (1) for the settlement of a dispute or complaint:
(a) dealt with in another section of this Chapter, or
(b) referred to the Tribunal or only within the jurisdiction of the Tribunal, or
(c) relating to the exercise, or the failure to exercise, a function conferred on an owners corporation by this Act or the by-laws if that function may be exercised only in accordance with a unanimous resolution or a special resolution (other than a special resolution under section 62 (3), 65A or 65B), or
(d) that includes the payment by a person to another person of damages.
(4) If a dispute or complaint arises from or relates to the operation or application of a provision of a lease of a lot, or of the common property, in a leasehold strata scheme, the lessor of the strata scheme must not:
(a) commence other proceedings in connection with the settlement of the dispute or complaint after having made an application under this section for the settlement of the dispute or complaint, or
(b) make an application under this section for the settlement of the dispute or complaint after having commenced other proceedings in connection with the settlement of the dispute or complaint.
(5) An application for an order under this section may be made only by an interested person.
Division 2 Orders relating to property
140 Order relating to alterations and repairs to common property and other property
(1) An Adjudicator may order an owners corporation to consent to work proposed to be carried out by an owner if the Adjudicator considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following:
(a) alterations to common property directly affecting the owner’s lot,
(b) carrying out repairs to common property or any other property of the owners corporation directly affecting the owner’s lot.
(2) An Adjudicator may make an order approving of alterations or repairs already made by an owner to common property or any other property of an owners corporation directly affecting the owner’s lot if the Adjudicator considers that the owners corporation unreasonably refused its consent to the alteration or repairs.
(3) An order under subsection (2) is taken to be the consent of the owners corporation to the alterations or repairs concerned and may be expressed as having effect from a day specified in the order that occurred before the order was made.
(4) An Adjudicator may specify in an order under this section whether the owners corporation or the owner of the lot concerned has the ongoing responsibility for the repair and maintenance of any additional property arising out of an alteration or repair to common property approved under the order.
(5) If an order makes provision for the owner of a lot to have the ongoing responsibility for the repair and maintenance of any such additional property, the order also has effect in relation to any subsequent owner of the lot.
(6) In deciding whether to grant an order under subsection (2) or to provide for the order to have effect from a day that occurred before the date of the order, an Adjudicator may take into account the conduct of the parties in the proceedings, for example, if an owner did not first seek the consent of the owners corporation before carrying out the alterations or repairs.
(7) An application for an order under this section may be made only by a lessor of a leasehold strata scheme or an owner.
158 Order with respect to by-laws conferring exclusive rights or privileges over common property
(1) An Adjudicator may make an order prescribing the making, amendment or repeal, in terms of the order, of a by-law if the Adjudicator finds:
(a) on application made by an owner, that the owners corporation has unreasonably refused to make a by-law of the kind referred to in section 51, or
(b) on application made by an owner or owners corporation, that an owner of a lot, or the lessor of a leasehold strata scheme, has unreasonably refused to consent to the terms of a proposed by-law of that kind, or to the proposed amendment or repeal of such a by-law, or
(c) on application made by any interested person, that the conditions of such a by-law relating to the maintenance or upkeep of any common property are unjust.
(2) In considering whether to make an order under this section, an Adjudicator must have regard to:
(a) the interests of all owners in the use and enjoyment of their lots and common property, and
(b) the rights and reasonable expectations of any owner deriving or anticipating a benefit under a by-law of the kind referred to in section 51.
(3) An Adjudicator must not determine an application referred to in subsection (1) (a) by an order prescribing the making of a by-law in terms to which the applicant or, in the case of a leasehold strata scheme, the lessor of the scheme is not prepared to consent.
(4) For the purposes of subsection (1), an Adjudicator may determine that an owner has unreasonably refused consent even though the owner already has the exclusive use or privileges that are the subject of the proposed by-law.
(5) An order under this section, when recorded under section 209, has effect as if its terms were a by-law (but subject to any relevant order of a superior court).
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Just in case anyone else is still confused, the general rule of thumb is that anything that is in lot property (ie your airspace or even walls that are not considered common property such as non-supporting entirely internal walls) is the responsibility of the lot owner and anything that is in common property (including balcony airspace where the balcony is common property) is the owners corp responsibility.
What has confused this issue is that the strata manager and the lot owner are in agreement that the balcony is lot property (even though the adjoining wall is not). This means that any part of the water supply that extends beyond the wall – such as taps – is lot property.
Are we all clear on that?
And yes, there are exceptions, such as intercom devices and door closers, but there are very specific reasons for this – which is why they are called “exceptions”.
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If the tap is in your lot airspace, then it is your responsibility.
Yes, there is a disclaimer to the “Who’s responsible ..” document, but you can bet your life that if this issue ever went to the Tribunal, the adjudicator would have a copy of the guide next to them. It may not have any defined legal standing (unless it has been accepted by your strata scheme via a by-law) but it is held as being pretty much definitive.
For $20, I would save myself all the hassle and buy the tap.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 just need a simple majority (51 percent) at the EC to decide not to pursue this. I think non-financial members can still vote at EC meetings but not at general meetings.
I would push the idea of the retrospective by-law allowing the changes but conferring responsibility for their upkeep and maintenance to the individual owners.
If the others get bolshie, I would warn them gently that if you are forced to change your window, others with unauthorised changes may also be at risk.
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First impressions, the tap on the balcony will be Owners Corp responsibility (unless the balcony is considered part of your lot, which is unusual) and the one under the sink is yours.
Have a look at this document. The devil is in the detailed footnotes.
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