[Jimmy-T]

It’s right here – still on the SMH under a different headline.

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[Jimmy-T]

Nope. You can’t pass a by-law that supersedes superior laws.

But you would need 75 percent to pass the by-law in the first place and it could be rescinded by 75 percent anyway so there would be no point in doing it, even if you could.

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[Jimmy-T]

Usually, the owners corporation would pass a by-law allowing exclusive use of the courtyard, permission which could only be withdrawn or revoked with the agreement of the owner concerned. The rights conferred by this by-law would pass to subsequent owners of the lot.

The “purchaser” would pay to have the by-law drawn up and would pay the costs of the meeting held to pass it (if it was a separate General Meeting and not just the AGM).

The by-law would state that the owner took over responsibility for the repair and maintenance of the property.  It would require a special resolution (75 percent of those voting) to be passed.

The payment to the general fund of the owners corp would be calculated by getting an assessment of the additional value of the property with courtyard etc minus the costs of the work involved, including the French windows (which would also be part of the new by-law).

The benefit of the payment to other owners of a payment to the admin fund would be that this would be less money that they needed to raise through levies – they could even award themselves a levies reduction if the sums were significant enough.

The owner doesn’t need to “own” the courtyard for it to be considered part of their property.  Most modern buildings’ balconies are common property but are considered part of lot property when a unit is sold.

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[Jimmy-T]

@Austman said:

And how about an OC owned pipe inside a wall that burst when it couldn’t have been predicted or prevented?   Where the contents of a lot were subsequently damaged by water.   I realise the OC must repair the pipe and the OC’s insurance might cover the damage caused.  But is the OC actually liable for the damage caused to the lot contents?   Or should the lot resident be claiming on their own contents insurance?

My view has always been the same as ScotlandX’s which is that the owner of the thing that fails, causing damage, is liable for the damage caused.  But then you have this item (which has always troubled me) in the NSW SCA’s “Who’s responsible …” document: 

If damage is caused to a lot owner’s property while the owners corporation are effecting a repair, the owners corporation are responsible to fix the damaged property. However, if the cause of the damage to the owner’s property was not made when the owners corporation were fixing the problem; instead it was caused by the problem itself, then the owners corporation are not responsible to make good the owner’s property unless the owners corporation can be deemed negligent. E.g.:

1. A burst pipe occurs in a wall and the owners corporation have to knock a hole in the wall to fix it. The owners corporation are responsible to fix the hole and repaint the wall afterwards.
2. A burst pipe occurs in a concrete slab. The owner’s corporation fix the leak, but water stained the ceiling paintwork of the unit below. Here the owners corporation are not responsible to repaint the ceiling because it was not the fixing of the repair that caused the damage.
3. A burst hot water service soaked the magnasite in a unit and the owners corporation had to take up the carpet to dry the magnasite. Once the magnasite had dried, the carpet could not be re-laid because it had shrunk. The owners corporation would be responsible for the carpet because the carpet was damaged because they had to take it up.
4. With example 3, if the magnasite was not damaged, the owners corporation would not be responsible to dry out the carpet or replace it, if it shrunk because the damage to the carpet was not caused when the owners corporation were fixing common property.

The thing I can’t get my head around is that damage from a common property water pipe failure is not the Owners Corp’s responsibility (but damage caused in effecting a repair is).  

However, the question of negligence does come in and some cursory reading of items related to damages claims suggests that there has to be a duty of care that the “guilty” party must be deemed not to have exercised.  Can an owners corp be negligent if there was no way they could have know a pipe was about to burst?

Perhaps if it could be shown that the owners corp should have known there was a potential problem, then it would be liable. In Austman’s example, I wonder if it would have been different if it had been shown, for instance, that the radio alarm was the wrong voltage for Australian domestic use.

In any case, I think not being properly insured is almost negligent (although not under the law).  And I think not checking any equipment that uses gas, water or electricity according to the manufacturer’s instructions  (and who among us does?) amounts to a form of negligence too.

But I am neither a lawyer nor a judge so I will bow to those better informed than me.

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[Jimmy-T]

@Mailbox said:
The following was sent via email by a reader who was unable to negotiate the registration process of the website – JT.

I have read with interest your expose of the insurance vagaries arising from the very common event of an escape of water in a Strata building causing damage to property.  There are certain aspects of this matter which need to be exposed, emphasised  and clarified in order that the outcome may be clarified for the assistance of all concerned.

In the second paragraph there is reference to a “tenant’s dishwasher” which means a dishwasher belonging to the tenant (of the upper flat).  In the third paragraph there is a reference to the “owner of the dishwasher” which is obviously referring to the owner of the upper flat from which the water escaped.  These two references are in direct contradiction of each other respectively so that one of the statements is in error.

Not so. The “tenant’s dishwasher” could just as easily refer to the USER of the dishwasher.  This kind of nitpicking gets us nowhere.

It would be possible for a tenant to be the owner of the dishwasher but for practical purposes it may be assumed that the dishwasher was owned by the owner of the upper flat.

Why would you even bother to make that assumption? It makes no difference either way.

The damaged property is not described other than to say that it “will cost about $4,000 to rectify”.  The absence of a proper description is a serious omission by the informant which requires clarification.

Naturally, the person complaining would have a full accounting of the damage that I neither had the space nor the inclination to print in my column.

 It could be speculated that carpeting belonging to the owner of the lower flat was damaged but reading the information supplied as a whole it is more likely that the primary damage was to (kitchen) cupboards in the lower flat.  If the tenant suffered damage to his/her property then this would likely be to TVs and other electrical appliances which damage is not usually described as a lump sum “to rectify”.

More speculation!  I am now beginning to wonder if my sense of “fair play” was seriously misplaced.

It is apparent that the informant is under the impression that the owner of the dishwasher has a strict liability for any damage caused by water escaping from the dishwasher.  The informant is seriously misguided in this regarded and should be disabused of this error.  The crucial question is to ascertain whether the damage was caused by negligence (which is difficult to prove) and, if so, which party was negligent.  The absence of any reference to this, especially as it is adequately covered on the Forum, is a serious omission.

There is plenty of information around the installation of dishwashers and other appliances to suggest that not checking pipes and hoses is an essential part of maintenance. It’s hard given the information provided to ascertain whether or not that was the case – but we can’t assume that this was an “act of God.” Failure to maintain is negligence.

There is not any legal obligation for tenants or landlords to insure and anecdotal evidence suggests that most of them do not.  The Strata legislation stipulates that that part of the building which is inside a Lot forms part of the building for insurance purposes.  Furthermore, the Strata legislation requires that each such building be insured, in breach of which there are penalties, so that it may reasonably be assumed that the building, including that part of the building inside the Lot, was insured. So, if clarification with the informant confirms that the subject damage was to the building and/or its fixtures, a claim should be lodged immediately on the building insurer.  Problem solved.  

This is arrant nonsense. Strata insurance does not cover fixtures and fittings except where they are part of common property. The SCA’s “who’s responsible …” document clearly defines damage of this nature as being the responsibility of the lot owner or tenant.

The rest of the post is just so much Bush Lawyer Bull.  I’m now wishing i had never posted this.

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[Jimmy-T]

As we have noted many times on this forum, if owners corporations allow owners to make changes to common property without approval, then future owners corps inherit the duty to maintain and repair the changes adter the unit has been sold on to subsequent owners.

It sounds very much like that’s what’s happened here but there are a few options.  The owners corp could agree to just “suck it up” and pay for the repairs.

Or you could say, that since this structure is common property and it is costing you money to repair it, you are just going to remove it.

Or you could agree with the current owners to repair this once, provided they agree to a by-law passing responsibility for all future repairs to them and whoever buys the unit in the future.

The current owners can’t have it both ways.  If they insist it’s common property, then (unless I am seriously mistaken) you can decide whether or not to keep it in place. 

There is a compromise to be had here – there are a lot of grey areas to be looked at.

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[Jimmy-T]

Scottie is spot on, as usual.  The law defines a speial resolution as “a resolution which is passed at a duly convened general meeting of an owners corporation and against which not more than one-quarter in value … of votes is cast. 

An abstention is a non-vote and is therefore not counted.  It is not a “vote cast” it’s a decision not to vote. By the way, special resolutions have to be conducted as poll votes, based on unit entitlelemnets, rtaher than a show of hands.

Just as an example, say owners who have Unit Entitlements totalling 100 turn up at a meeting.

Owners with UEs worth 48 vote in favour and other owners with UEs worth 17 vote no, with the owners holding the remaining 45 votes abstaining.

The motion would fail because more than 25 percent of the VOTES CAST were against it, even though it was only 17 percent of the Unit Entitlements. (Obviously, unit entitlements tend to be in the thousands rather than 100, but I’m trying to keep it simple.)

In simple terms, far from being a yes vote, non-votes or abstentions usually favour the “no change” group as they reduce the voting threshold.  That’s why you have to get everyone informed and involved before a special resolution vote.

It’s also why owners have to be very careful about the by-laws they “just go along with” just to keep committee members or a vocal minority happy.  A powerful minority can railroad an owners corp into making bad decisions then make it very hard to rescind them once the damage is done. 

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[Jimmy-T]

Yaaay!  A win for the good guys.

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[Jimmy-T]

This is a very interesting fact sheet on “Assistance Animals” – makes clear distinctions between the level of assistance and their relative permissions; https://www.awaredogs.org.au/our_services/

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[Jimmy-T]

On the face of it, the strata law firm seems to be at fault here since they have allowed the law firm to proceed without proper instruction.

I would recommend that you try to have a sit-down meeting or mediation with all parties present.  Failing that, tell the strata managers that if they don’t refund your money and deal with the money owed to the lawyers, you are going to run them through Fair Trading and NCAT. 

There are restrictions on owners corps that actually do want legal representation.  There’s no way you should be getting charged for legal advice when you didn’t want it.

But talk first before going to the barricades.

And this is one of those situations where you can see the clear need for a strata Ombudsman.

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[Jimmy-T]

Our esteemed legal sponsors Makinson d’Apice were involved in a case some time ago where an owner insisted he needed a hearing assistance dog to alert him to the presence of someone at his door … which the dog did by barking!?!

Hearing assistance dogs normally alert their owners by physical behaviour. One dubious hearing test and a compliant doctor’s letter led the CTTT Member to the conclusion that it was a valid claim.  

The yappy dog was not only allowed to stay but was given permission to bark, despite the plaintiff’s clear ability to overhear whispered conversation.

So what do you do?  I would pass a resolution at your next EC meeting that the Owners Corp will actively defend residents’ rights to choose to live in a pet-free building, including taking such legal action as necessary to remove any animals that are not permitted under the terms of the Strata Schemes Management Act.  

You will require owners of assistance animals to provide medical evidence of the need for the animal and for the animal to be properly trained and registered as an assistance animal. Failure to provide evidence on either count will result in action to have the animal removed.

Setting out your stall in this way may discourage the owner … but it could forewarn them of the battle ahead.  Even so, you can go to NCAT or court having made it clear that you would not tolerate by-law breaches.

Good luck with that.

And before the pro-pet lobby jumps on me, I believe people should be allowed to have pets in buildings. But I also believe owners should be allowed to declare their buildings pet-free if the great majority so desire.

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[Jimmy-T]

@PeterC said:

I’m not sure the EC should say who they believe is at fault. I think they should stick purely with helpfully confirming plain facts such as stating what damage was present in each unit and that it does appear that the water that caused the damage emanated from a leaking dishwasher upstairs. 

That’s kind of what I meant, Peter, but I can see the subtle difference between stating the facts and apportioning blame. The former can allow insurers or a court to make their own mind up.  My point is, I think the EC’s considered involvement will help the downstairs neighbours achieve a fair and equitable result. 

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[Jimmy-T]

Check the strata plan to ascertain whether the wall is or isn’t common property.

If it is, write to the strata manager asking for immediate repairs and painting.

If it isn’t, despite the fact that sky blue is a calming colour (everywhere else in Australia) check your by-laws and how they relate to the outward appearance of your lot – there may well be restrictions on what you can and can’t do.

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[Jimmy-T]

If the damaged unit is insured, then the owners should claim against their own insurance and ask the upstairs owner to pay the difference.

If the downstairs unit is not insured, then the owners should present a bill to the upstairs owner for the repayment of the repairs and follow that up with a claim at a local court, if need be.

I can’t see any circumstances in which the Owners Corp should be liable in this situation, unless there was a failur os common property that contributed to the damage.

It’s time for the people who suffered the damage to stop hoping that the owners corp will ride to their rescue, and get things going themselves.  It’s really not that hard.  The dish washer caused the damage.  The owner of the machine and/or the unit where it resides is liable.  Get a bill. Make a claim.

All the EC should be doing is providing written support as to what happened and who they believe is at fault.  If the owner of the unit at fault isn’t insured, that’s their problem, no one else’s.

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[Jimmy-T]

@Mailbox said:
This arrived this morning from an unhappy reader:

From your article, I can see how naïve you are . If you think that “proxy farming” is a mechanism to be elected or the building will collapse without you, then you have never been in the thankless role of Chairmen of a Body Corporate committee.

Actually I have, twice.

Perhaps you haven’t lived in a strata title  …

Wrong again.  I have lived in strata in Sydney for the past 26 years, as a tenant, then an owner (and investor for what it’s worth).

… or you have but you haven’t paid attention to how much work is involved, the daily phone calls , load of emails, organising  workers to collect keys so emergency work can be done in their apartment, liaison with the managing agent 24/7 and all this you do out of the goodness of your heart. Mostly tenants knock on your door at any time of the day and night and treat you like a concierge – or their parent!

See, this is the problem.  You take on the role then you complain that it involves too much work.  There are plenty of people who accept that the role of chair of a committee comes with certain responsibilities and they get on with it.  If you don’t want to do it, stop hoovering up votes every year to make sure you get elected.  Hire a professional manager if it’s so onerous or – heaven forbid – let someone else do it.

Attending a tribunal hearing if or when necessary is another joy and I am sure you would ask why  the managing agent doesn’t get involved.  I have yet to see one managing agent who is capable of executing his duty efficiently , the less work for them is the better .

Yep, as described in my article – the building would collapse without you in charge … except it wouldn’t.  If your strata manager is incompetent, get a new one.  There are plenty of excellent operators out there.

Those by-laws are written by bureaucrats who never in their life have lived in a strata title dwelling.

There is no way you can know this. In any case, by-laws are passed by the owners corporation, and are often written under the direction of their Supreme Leader.

I have been a chairman for the past 25 years and I could write a book about what is really going on. I sold 3 years ago and now live in a house and there is no way I will live in a unit ever again.

On behalf of all strata residents, we thank you for going where you belong.

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