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Hope you feel better for having got that off your chest – although I think a slightly more imaginative headline than “strata managers” in a section called “Strata Managers” might have helped your case.
Are you saying all strata managers are dishonest and do nothing? This is demonstrably not true. How about the majority? No evidence of that at all. In fact, when a strata manager does break the law, this is what happens. Yes, they go to jail.
Now, we have had plenty of examples on this forum of individual strata managers who have been incompetent, lazy, obstructive and been more interested in maintaining their contracts than serving their communities.
But in the 12 years that I have been writing about strata, the industry has given itself a good shake and now has a professional grading system so that individuals can prove that they have the skills and integrity required.
Sure there are bad apples. But there are also bad strata owners. At least you can sack the strata manager if things get too awful – you are stuck with owners.
Jumping up and down an yelling abuse doesn’t get you very far in life, strata included. Presenting a reasoned argument to your fellow owners will work wonders – if you are prepared to make the effort.
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What do your by-laws say about short-term lets?
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This is a question for PeterC – what is the rule or by-law in the ACT about not being able to prevent changes that are beneficial to the environment? Is that a planning thing or does it apply to strata by-laws too. For instance, would the installation of an electric car charging station be exempt for restrictions on changes to common property?
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@nyonyakay said:
… what are the OC’s rights and obligations here? And what is that special by-law he should be afraid of? What part of strata law enables them to use a by-law to pass the buck onto the Owner here?As you will see from Paragraph 3 of Section 162 of the Act (below) the Owners Corp can pass a special resolution to decide not to maintain common property provided doing so would not “not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.”
A Special Resolution has to be passed at a General Meeting with no more than 25 percent of votes at the meeting voting against (by unit entitlement) .
The air-con owner may well be able to raise those votes, especially since most people don’t attend most meetings most of the time. Again, the EC need 75 percent of people voting AT THE MEETING, and if they organise themselves properly, they will get that. It’s an easy sell in a proxy farming exercise: “Why should you pay for one person’t aircon?”
However, in a small scheme, a penthouse owner might already have the UEs required to defeat the motion.
If I were in your friend’s shoes, I would go to the EC and say, “OK, you fix it this time and I will sign a document and agree to a by-law taking responsibility for repairs and maintenance into the future.”
Or I would point to the last part of Section 62 which clearly and significantly states that the adjudicator has the power to overturn a special resolution in cases like this. In other words, the owners corp could fix the A/C and be done with it, or face a legal battle and then have to fix it anyway.
This is what the Act says:
62 What are the duties of an owners corporation to maintain and repair property?
(1) An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
(3) This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:
(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.
Note. The decision of an owners corporation under subsection (3) may be reviewed by an Adjudicator (see section 138).
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The tricky phrase here is “properly insulated”. My EC demands an 11mm Regupol, for instance.
On the question of lateral transmission. I believe the way boards are usually laid, there is a gap between the edge of the boards and the adjacent wall, specifically to prevent the noise transmission you mention (as well as to allow for expansion). This gap is normally concealed by a skirting board. Check with the flooring company and they will advise.
Otherwise, protect your neighbours and your new floorboards and leave your shoes at the front door. It’s as simple as that.
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Whale is on the ball, as usual. If you win the case at NCAT, there are provisions in the Act to ensure you don’t have to pay your share of their costs. Howveer, if you lose, then you will suffer the double-whammy of your costs and your share of their costs. Time for a mediated settlement, methinks.
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The owner has a duty to moderate the behaviour of any visitor or tenant on their property.
The way this works is that you have to identify a breach of the by-laws and the EC has to issue a Notice To Comply (which would say that they have breached by-law xx by making too much noise and disturbing other residents who have a right to the peaceful enjoyment of their lot).
You then write to the landlord and say that since this tenant has breached the by-laws, that means they are also in breach of their lease and the landlord not only has the right to evict them but has a legal duty to either do so or compel them to behave.
This puts the onus firmly back on to the landlord.
Another avenue you could explore might be a noise abatement order. Have a look at this fact sheet which has links to a lot of useful information.
Good luck
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Have a look at this story about a Victorian couple who managed to block mass inspections of their home.
Then start taking action through Consumer Advice Victoria for a rent reduction backdated to when you first raised the issue.
And tell the landlord that you intend to stick to the letter of the law on how often they can show the property. Quite clearly they are asking too much for the unit and you are the one paying the price.
And finally warn the real estate agent that if they continue to bully you with threats of a “bad reference” you will report them to CAV and the Real Estate Institute of Victoria.
And have a look at this factsheet (it’s the online version of the one recommended by DaveB).
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I agree with DaveB.
Slightly off topic, writing “Failure of waterproof membranes all over building – should owners be responsible for non-common property failure?” is not a heading, it’s a novel.
Please try to keep headings short and to the point (I have fixed this one). That said, it’s not as bad as posters who simply put “Strata Problem” or “Executive Committee” as their headings.
I mean, what else are we here for?
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The owner concerned needs a short sharp lesson in what common property is and isn’t. It’s certainly not a bottomless pit of money there to satisfy the whims of every individual owner at everyone else’s expense.
The owners needs to apply for a special resolution by-law (at his own expense) to install the electrical connection (again at his expense).
The only exception would be if the power supply was shown on the original strata plan but wasn’t there.
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In my building of about 130 lots, there is a power point on each pillar in the car park and that works out to about one power point for every six spaces.
The power point running off lot electricity is much more likely to occur in a small scheme where units have direct access to their parking spaces or garages.
The original post was about the EC arbitrarily deciding to lock all common property power points.
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Yes, it’s probably illegal but it’s also bloody effective.
If I were thinking of doing something like this (which, I reiterate, is illegal, certainly by my reading of the Electricity Supply Act – see below) I certainly wouldn’t issue a warning.
It is also in breach of Section 116 of the strata Act although, in my book, when individuals decide that the rules don’t apply to them, they don’t get to choose which rules do apply to everyone else.
So, if you were to pursue this legally highly dubious path, make it unofficial. Don’t minute anything or discuss this in any way that would leave a paper trail. Don’t forget, an Owners Corporation is subject to many of the same laws as other corporations and, in this case, officially sanctioned illegal action could lead to a maximum fine of $400,000 (a penalty point being $100).
So if you were determined to go down this highly ill-advised route, the way to proceed would be to quietly decide how you are going to get access and who is going to carry out this evil plan. Then, if a party gets out of hand, person or persons unknown can flip the switch, lock the utility cupboard door, and go back to bed.
Who’s to know that the combination of a stereo system, lights, phone chargers and spillage didn’t overload the system and trigger the emergency isolation trip switch?
Sniff, sniff. Can you smell smoke coming from the power cupboard? Did you know the Act allows us to cut off electricity in the event of an emergency?
Now that the extreme fire risk from an overloaded power board has been dealt with, let party boy call an electrician (about $1000 in the early hours of a Sunday morning) to get access to the fuse box. By the way, most electricians carry a pass key that gives them access to power cupboards in apartment buildings.
The belt and braces approach, just in case Party Boy gets in right away and switches the juice back on, would be to flip the switch and cut the fuse wire, but that is dangerous and should never be done except by a qualified electrician. Or at all.
In fact, none of this should never be done by anyone, ever (although I know of several building managers who find the mysterious loss of power to party pads solves a lot more problems than it creates). And if you were thinking of breaking the law in this way, I certainly wouldn’t be informing your victim beforehand.
65 Interference with electricity works
(1) A person must not interfere with a network operator’s or retailer’s electricity works unless authorised to do so by the network operator or retailer concerned.
Maximum penalty:
(a) in the case of a corporation-4,000 penalty units, or (b) in any other case-200 penalty units or imprisonment for 5 years (or both). b) An offence under this section that is committed by an individual is an indictable offence.
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This will be may main column in the paper next weekend but I thought I’d share a few observations in advance.
So what does a sensible owners’ corp do? Well, for start, you don’t lock off a convenient power supply, just in case.
First you could pass a by-law restricting what can be run off common property electricity sockets. Vacuum cleaners, yes, freezers, beer fridges and cars, maybe not. Then establish a programme whereby residents can apply to have separate electrical meters installed on the sockets.
These cost less than $50 (plus electrician fees), a charge that I’m sure electric car owners would be happy to pay. Here is one example but there are cheaper imports available.
Add in a few riders about who is responsible for the maintenance etc, and how the bills are to be calculated and paid, and suddenly your unit block has lurched into the 21st Century.
It’s a little bit complicated but it’s more forward looking than a “lock up your daughters” approach to the electricity supply.
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Put to together a series of motions for your next EC meeting (or, if there aren’t any, to the secretary/chair/strata manager).
Each of these motions should be backed by a reference to your by-laws or strata law.
For instance: “The EC should issue a notice to comply against the owner of lot XXX for repeated breaches of By-law x.” You would, of course append pictures or statements from other owners to back your action.
In the case of the roof space, it would be a motion that the EC pursues the owner under Section 116 for interfering with common property.
Let’s assume that the EC or office bearers do nothing about these motions for two months. You then move on to a section 138 action against the Owners Corp, asking an adjudicator to force the EC or whoever to take action.
However, before you do anything, it may be worth talking to a specialist strata lawyer.
This is what section 138 says:
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.
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I think you might have a case to take to NCAT under section 158 (below). Firstly, though, I would approach the EC member and tell them that you feel they have given themselves an unfair advantage with this by-law but that you are prepared to accept a new by-law where they pay their fair share for electricity etc.
Howvever, if they refuse you will take them to NCAT and seek back-payment of all the money they should have been paying for the past few years.
This is what section 158 says:
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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