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@bcr83 said:
I can understand that a SBL may be required however my SM has advised that it may have been approved with by law 5 – “damage to common property”
You only need a special resolution by-law if you are changing common property. Some would argue that glueing insulation to a concrete floor is changing CP but if you can lay the tiles without glue on the concrete, you definitely don’t need a by-law.
… we have an apartment completely tiled beneath me, would it not make sense to at least check what communications if any have taken place to the EC and if this particular by law was applied prior to this floor going in?
Yes it would, just to see how this has been handled in the past
… if it is ok for the unit below to have it then treating everyone equally, I should be able to have it? If not, then shouldn’t the owner for the unit below be advised of the breach etc?
This is more or less irrelevant. A slack previous executive committee may have allowed all sorts of breaches to pass on a nod and a wink. That can’t be allowed to create a precedent for a well-managed EC that comes in years later. Precedent is not considered at NCAT and neither should it be in your unit block.
I have made contact with companies who can provide acoustic underlay that exceed the standard with regards to noise transmission for tiled floors. If I have a SBL created and … I am satisfying the maintenance/upkeep requirement and adhering to noise transmission requirements, what else would someone be concerned about?
Firstly, which standard are you talking about? The Building Code standards for insulation are a joke but you won’t be laughing if you think they will protect you from complaints about noise. Behavioural aspects can and do come into play. Flamenco dancing and weight-lifting or, more seriously, running children and heavy bass surround sound from movies can make a mockery of acoustic insulation. That’s why some smart Owners Corps don’t say you must have acoustic insulation of such and such a standard but simply talk about the level of noise transmission (which is covered by your existing by-laws). In other words, if you get it wrong, and install a floor that turns out to be noisy, it’s your problem, not theirs.
Lastly, If I have a Bylaw created and then take it to the matter to AGM and it is not passed, that’s a significant cost to wear. Does it work in the way of being approved at the AGM and then the By Law is created to save the potential loss?
The AGM or any other general meeting can’t approve a by-law unless the specific by-law is presented at the meeting. What you need to do is negotiate with the executive committee and the strata manager and get their support for the by-law before you take it to the general meeting. Get them to tell you what they are concerned about and make sure that is covered by your by-law (if you need one).
EC support generally holds a lot of sway and, even if the general meeting doesn’t approve, it puts you in a good position to go to NCAT and ask them to order the Owners Corp to approve the by-law. But if you try to get the by-law through without EC approval you are facing an uphill battle and need to do some serious canvassing among your fellow owners.
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I think we have been over this ground before. The advice that has been offered that the changes to the railings constitute an upgrade – which requires a special resolution – not a repair (which doesn’t).
Someone, preferably a group of you – needs to write to the EC members and tell them that they are acting outside the terms of the Act, the have no authority to raise the special levy and if they proceed with the action a general meeting will be called at which they will need to convince 75 percent of owners present to support them. Otherwise they may have to pay for the work themselves as they have instituted an upgrade for which they have no authority.
It is worth sending a letter to all owners telling them that they face either repair bills that they don’t need to pay, or legal expenses for defending either the EC against the owners or vice versa.
Communicate!
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Just reinforcing Peter C’s approach. Talk to someone on the EC but also talk to people who use bikes. If you have a noticeboard, use it to get people to support you. Ask a local Real Estate agent if having dedicated bike racks adds to the value of properties (it does!). And get your landlord involved – they will have much more influence on the EC than you will ever enjoy.
However, be prepared for the do nothing, spend nothing, moaning Minnies who will object on the following grounds:
1. Cost
(A: What about the cost of wear and tear on common property of bikes being bashed through doors, corridors and lifts?)
2. What if the bikes get stolen or damaged?
(A: Make it clear that bikes are left at the owners’ risk)
3. What if someone trips over a bike while passing the rack?
(A: What if someone gets injured by a bike in a lift, or a cyclist is hurt wrestling their bike up and down to their home).
4. There hasn’t been a problem before.
(A: Yes there has – it’s just that bike usage has increased and no one has complained before)
On the other hand, maybe your idea will be met with universal approval, and with that in mind, it may be better to start with the softly-softly approach … then build.
Best of luck
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I can see the logic of the gradual escalation but, to me, someone who is creating a disturbance is not going to respond to a general notice. If they don’t think they are doing anything wrong, they won’t see themselves as being subject to the general reminder. If they do know they are breaking the rules, they won’t care. And you run the risk of upsetting people who mistakenly think the note is directed at them
There is a myth in strata that you have to provide one, two or three written warnings before you issue a notice to comply. A Notice To Comply IS a warning – it says the committee thinks the resident is breaching the by-laws and if they don’t stop, action will be taken that could lead to fines.
It’s not a fine or a summons, it’s a warning but one that has teeth as it is a required step in a process that can lead to fines being imposed.
Trust me, having just been to a mediation following a notice to comply, this is a process you want to get going sooner rather than later as it can drag on for months (and still not have a guarantee of success).
And the very mention of a fine can get people’s attention in a way that an appeal to their better nature won’t.
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@melbrandle said:
But honestly, I think you’re going to want your own insurance just in case something on their side isn’t as comprehensive as you would like it to be. They are only obligated to a certain extent anyway.This is about compulsory building insurance that must be taken out by owners corporations for the replacement cost of their buildings in the event of a disaster. It is not appropriate or, I suspect, possible for individual owners to take out their own insurance for their share of the structure. However, different insurance policies form different companies may offer different levels of cover.
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@Robbiejuve said:
Hi Guys,NSW here. Just got an invoice to fix the waterproofing in the shower of a unit in our block of units. To me it seems like a mix of OC and Owner responsibility. Can you please advise.
Without going into too much detail, and using the SCA’s “who’s responsible?” factsheet as a guide, the answers are as follows”
Re-grout the walls of the shower recess – these are internal walls so owner? – YES
Seal and waterproof junctions – wall junctions, owner? YES (if all walls are internal and not abutting common property or another lot)
Seal the floor waste – OC? YES
The shower screen within the shower will be sealed – owner? YES
Seal behind the taps – owner? YES
As I understand it, unless it is the floor or a boundary wall, these repairs are at the owners cost? Correct
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According to the Strata Community Australia (NSW)’s “Who’s responsible ..?” fact sheet. “Any pipe, cable, ducting, plug or the like that is for the exclusive use of the lot [and is] outside the lot or in a wall, floor or ceiling that abuts to either common property or another lot is the owners corporations responsibility.”
That means, apart from anything else, you have to allow access to it. However, charging $5000 to shift the cables sounds excessive to me. Get your own quotes but be prepared to pay half (or whatever your share of unit entitlements is). At least then you know your momentoes will be safe and your private property will indeed be private.
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I’d just like to make one final comment about special resolution and exclusive use by-laws. One question that gets asked a lot is “where does it say that they person who wants the exclusive use has to pay the cost of the by-law and meetings, etc?”.
The answer is nowhere, but any owners corp that doesn’t force the owners who are benefitting from an SBL to pay for it, deserves to be fleeced in this way. It’s “user pays” and if the benefitting owner doesn’t want to pay, then don’t vote for their by-law and they don’t get exclusive use. It’s really that simple.
As for “anchoring” this in archives, the search button works really well so it will always be easy to find older posts.
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Yout pretty much on the mark, Peter.
It’s 75 percent of those voting at a general meeting as calculated by unit entitlements (special resolutions always have to be conducted according to UEs).
The 75 percent is the required proportion of the vote, not of those in attendance and certainly not of the total owners. Abstentions don’t count as votes.
So, for example, in a building of 100 units where 60 owners turn up who are elligible to vote (i.e. they have paid their levies) and they all have equal UEs (which is never the case) and 44 of them vote yes and 16 vote no, the motion fails.
But if 44 vote yes and 13 vote no and one abstains, the vote carries. It’s complicated.
Critically, for the original poster, items that require a special resolution have to be shown as such on the agenda issued two weeks before the meeting or the vote doesn’t count. It’s up to the chairman or secretary (advised by the strata manager) to make sure that motions requiring special resolutions are properly signified.
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Just to put this into some sort of perspective, several years ago the Executive Committee of my building decided to provide storage in some of our unused nooks and crannies for the hire of individual owners. A company installed chain link cages and they were rented out on a pro rata basis, calculated on the space inside, at considerably less than commercial rates.
There probably should have been by-laws and all the rest of it but the general opinion was that everyone benefited one way or the other, either by having secure storage or by the admin fund getting rent from the storage.
The only fly in the ointment came later when a new autocratic chair decided to up the rates and had a informal vote where people who had cages were excluded from voting but people on the waiting list weren’t. Bizarre!
Anyway, the point I wanted to make was that the StrataKops didn’t come screaming round in their ByLawMobile to tell us we had to take it down. If anyone objected to this, they certainly weren’t annoyed enough to test it at the CTTT. Common sense prevails … until it doesn’t. And that’s when you deal with it otherwise good ideas die like dogs in a ditch.
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I think the answer may be in seeking an order under Section 158 1(b), 2 and 4 where an owner has refused a reasonable request to agree to an amendment of a special resolution by-law. 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:
(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
(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.
(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.
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bearing in mind that the Owners Corp has responsibility for common property without limitiation, if they bacame aware that there was a potentially dangerous situation created by unauthorised changes to CP, they would be negligent not to do something about that.
And even if they weren’t aware, it could be argued that they had some responsibility but, really, it would fall back on the person who made the changes.
But I don’t think an Owners Corp could, for instance, lock a door because someone might bump their head walking through it. They could, however, deny access to a stairway built on common property if the stairs themselves were demonstrably unsafe.
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Just a quick summary of your position.
Changes to common property require a special resolution (75% in favour), repairs require only a simple majority.
If the pro-work group are saying that the current balustrades need to be changed because they aren’t up to code, then that is an alteration of common property that requires a special resolution (75% vote in favour).
If the pro-work group are saying this is only a repair, requiring a 51% vote, they have to show that the balustrades are broken (which they are presumably not).
There are a limited number of instances where building codes are retrospectively enforceable (fire ordinances and swimming pool fences, for instance). Most other building code issues only become enforceable where there is work being done in the area where the non-code structures exist.
If they dispute this, and they want legal advice, they do have a majority so they can force everyone to pay for it but you might have recourse under Section 149 of the Act to ask that levies be altered so that those who did not see the need for legal advice don’t have to pay for it (especially if they are found to be correct). I would certainly present that as your intention if they insist on the owners corp paying for further legal advice in a matter that is already being considered by NCAT.
The simplest solution would be to let the upgraders upgrade their own balustrades at their own expense, with the condition that the same will apply to the other owners should they wish to do so, and that the individual owners accept responsibility for the repair and maintenance of the balaustrades in perpetuity. The cost per owner will work out roughly the same without the need for lawyers (except to draw up the requisite by-law).
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