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The owners corporation has the right to restrict who comes and goes on common property to people who are registered owners or tenants or their bona fide guests. Renting a car space to an outsider can be a serious breach of security and safety in a strata building since there is no recourse under law if that unregistered sub-tenant damages common property or behaves in breach of by-laws.
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You can name and shame anyone you like once you have deposited …. hmmm … let’s say $100,000 in a trust account for legal fees in case they come after me rather than you.
Report the agents to Fair Trading – they have all the mechanisms you need to pull dodgey rental agents into line. In fact, tell them that’s what you’re going to do and see what happens then.
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@mini said:
@JimmyT said:
No, it isn’t arguable. Section 49, to which you refer, doesn’t even prevent owners corps from passing by-laws preventing the lease of apartments as short-term lets“A high-rise apartment building leasehold scheme located in Sydney’s Darling Harbour was managed by a large hotel group for some time, and a number of lot owners had made their apartments available for short-term holiday leases through the hotel group. This situation changed when the hotel group vacated the building and an extraordinary general meeting of the owners voted to adopt a special by-law to prevent short-term leases and serviced apartments … The Adjudicator considered that the new special by-law led to restrictions that were not compatible with section 49, and was therefore outside the by-law making power of the owners corporation pursuant to section 159 of the Act…”
Not arguable? Or, would this be considered “scratching your amateur attorney itch”?
Absolutely and here’s why.
This is a very specific case where a building that originally had a DA and a Strata Management Statement allowing short-term lets was now being reclassified as long-term residential only. THAT is in breach of Section 49 because, at least in part, it is retrospective and discriminates against people who have bought into the building in the good faith and reasonable expectation that they would be able to let their apartments as short-term rentals.
That is completely different from a unit block that is already zoned permanent residential has a Strata Management Statement that says nothing about allowing short-term lets and where the owners corporation is allowed to use its statutory instruments to manage its community.
This is the danger of trawling the internet looking for cases that kind of, just about, almost, nearly support your argument. I say again, there are websites out there that will gladly accommodate reams of dubious advice at any length and of any quality. If you need an outlet for your itch scratching, please go there because this is not the place for it.
However, if you can find one case of a residential only building that has had an attempt to create a by-law forbidding short-term lets overturned by a Section 49 submission, please let us know.
And, by the way, I got my information on Section 49 from Cathy Sherry who is a senior lecturer in strata law at UNSW and, according to the UNSW website, is “a leading Australian expert on strata and community title” and “provides advice to government and the private sector on the complexities of collectively-owned property.”
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@mini said:
I think it is at least arguable that the by-law would offend s 49(1) of the Strata Schemes Management Act 1996, which states that “No by-law is capable of operating to prohibit or restrict the devolution of a lot or a transfer, lease, mortgage, or other dealing relating to a lot.”
No, it isn’t arguable. Section 49, to which you refer, doesn’t even prevent owners corps from passing by-laws preventing the lease of apartments as short-term lets – something that is a lot closer to the wording of this section than preventing car spaces from being used for other purposes.
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@mini said:
@scotlandx said:
In relation to pets, that is not correct mini and is established law.Daniel Russell, one of the leading strata lawyers, says otherwise (on another website). As I said, it really depends on the terms of the by-law. Namely whether the by-law has a “savings provision” or “grandfather clause”.
I’m sure Daniel is a fine lawyer, but if lawyers agreed on everything there would be no need for courts of law. Lawyers never give instructions, they offer “advice”. You “instruct” the lawyer, they “advise” you.
In any case, mini, your posts are getting longer and more tortuous in an effort to do what? Win an argument?
Here at Flat Chat we’d rather get to the facts than indulge in a Bush Lawyer debate. This item is now closed. And if you want to keep scratching your amateur attorney itch, I suggest you go to the website you referenced earlier – I believe they will run any old twaddle at whatever length it’s provided.
Case closed.
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@g said:What’s next? Forcing you to have your groceries home-delivered? Oh, someone’s car had a scratch so now only professional valet drivers are allowed to move cars into and out of the carpark? Some people seem to think that humans should be locked in a protective cage for our own safety, and only allowed to perform tasks that we have had four years of full-time training on.
The weakness of someone’s argument is in direct proportion to the ludicrousness of the “examples” they choose.
Unlicensed, untrained and unaccountable removalists can do a hell of a lot of damage moving people out of a unit (when, by definition, they are gone). Using yourself as an example of someone who would never damage common property in a move is totally irrelevant, unless you plan to do all the heavy lifting yourself (rather than employing three Dutch backpackers at $15 an hour to help). I think people who insist on their “right” to do whatever they want whenever they want on other people’s property should be put in a protective cage to make life better for the rest of us.
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@Whale said:
KWP – actually the NSW Act doesn’t definitively state that the responsibility of any alterations to common property transfers to the O/C once a lot is sold, as mini said, it’s just how it’s generally interpreted (including by me).Then Mini said
That’s not really the case.
If works have been carried out in contravention of section 65A, that is, if there has been an addition to the common property without a special resolution specifically authorising that addition, then, prima facie, some cases have held that the owners corporation is responsible for maintaining that addition.
To be fair, you have not provided a definitive statement of who is responsible for what, instead you have given us a ramble through various bits of legislation with a fair few unreferenced instances about what has been “held” in “some cases” to be “prima facie”. That is far from a definitive statement in any Act.
Whale said there was no definitive statement. You say he’s wrong but, in fact, you prove his point. Enough of this. Here is a definitive statement:
If someone changes common property without the knowledge or permission of the Owners Corp and then sells that property, the Owners Corp inherits the changes to the common property. However, within the OC’s legal obligation to maintain and repair common property lies the implied right to restore the CP to its original state at the OC’s expense.
If anyone has any issue with that, please sue me so we can get a definitive answer as a legal precedent.
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@Mr Strata said:
I am suggesting, rather than having that battle, why don’t the OC and Owner work together to take action against the shoddy builder who should be the one paying all costs to fix defective building works. 2 years non structural and 6 years structural warranty requirements under the home building act. The contractor should have been licensed etc, and dependent on the contract and cost of works should be providing warranties.
Just some food for thought…. It’s easier for all to work together to resolve their common issue, use the energy to get it solved rather than fight against the other owners and strata manager, put the shoe on the other foot, how would you feel as an owner, paying to fix someone else’s shoddy renovations, that benefit no one, but just that apartment…
I agree that working towards a common solution is better than going to war but it seems like the EC has come in very heavy-handed on Masked2014.
Your example is very specific … a restaurant is by definition a public place so everyone would have been able to see the changes that were made. However, the OC got an order requiiring by-laws if the new owner wanted to keep the changes. That doesn’t alter my point at all. In fact it proves that the OC still had responsibility over common property and could, theoretically, have reinstated common property at OC expense.
If you trawl through these pages, however, you will find plenty of examples of owners whose ECs have tried but failed to order them to fix or remove changes to common property. And yes, other owners have to pay for fixing up just one of their neighbour’s messes – that’s why I am always warning against owners corps allowing changes on a nod and a wink.
But the fact remains that common property is the responsibility of the owners corp and changes are the responsibility of the person who made them. If that person has sold up and moved on, the responsibility reverts back to the OC.
They can order that it be repaired and reinstated … but it would be at OC expense. In the vast majority of cases the outcome described in your restaurant example is negotiated rather than taken to a tribunal. The owner can keep the alterations if they agree to a special resolution by-law shifting responsibility for the upkeep to them.
That’s perhaps what Masked 2014 should be seeking – but he certainly shouldn’t be paying for repairs or remediation that are the OC’s responsibility.
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Mr Strata, I don’t think that’s the point here. This issue is that unauthorised changes were made to common property by a previous owner and Masked2014 was ordered by his strata manager to make good the damage at his own expense.
We are saying that he doesn’t have to as they (the OC) have inherited the common property damage and if they insist on “fixing” it, they have to pay.
Masked 2014 was looking for a definitive ruling that he could show to his strata manager to prove that we are right and the SM is wrong. I don’t know of one but that doesn’t mean it’s not accepted fact. And Whale’s post 5 below points to sections of the Act that would construct such a ruling.
So, if I were Masked 2014, I would not be hiring anyone to do anything. The OC are the ones who want things done and they have been told that they are responsible but chose not to believe this. So let them make the running until they trip over the law
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@Donswayze said:
Q1 – Can they enforce that you must use a professional removals company?
Yes, just as they can insist that your use qualified and licensed tradespeople.
Q2 – Can they limit your choice to use only their nominated removal company?
No – unless there a specific issues with the building that require skills that only the nominated company possesses. They could try to enforce it but any breach notice would probably be knocked over in NCAT as being unreasonably restrictive and may actually be a restraint of trade. A better by-law would allow for a hefty deposit before the move, and an inspection of common property before and after.
Q3 – Can additional by-laws apply to me given I am an existing tenant?
Yes, but they can’t be retrospective. For instance, a by-law banning pets can’t be enforced on pets already in the building because that relates to an action that has already happened (bringing in a pet). However, they could bring in a by-law to take action against barking dogs because that relates to actions in the future that could be prevented.
Q4 – Does the fact that I am on a rolling arrangement outside of the initial lease agreement waive any of my requirements to comply?
No, unless it materially affects the terms of your original lease. For instance, if they decided to close the gym at 5pm instead of 10 pm and you were a frequent user at 7 pm and had rented on that basis, you would have a valid complaint. In that case your redress would be with the landlord for loss of amenity. But if they banned smoking on the balconies, for instance, you would be hard pressed to argue that you were already a balcony smoker and so it didn’t apply to you (although I’m sure many smokers would say exactly that).
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@kiwipaul said:
Whale I don’t know what the problem is but some of the entries don’t show up in the list down the left hand side and this is one of those initially as this is the first time I’ve seen it and I log on most days.It’s not a problem … far from it. The new topics and responses to older ones come in so quickly these days that a topic only a couple of days old can drop off the bottom of the “recent posts” column.
That’s why it’s best to post in the right topic from the start so that people can find their posts and responses more easily after they have been shunted off the page.
I do try to shepherd those that end up in the “How to post” bin but it’s hard to keep up.
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Just to add to my previous comments and Scotti’e observation below, it is worth noting that the section of the strata Act dealing with exclusive use by-laws and the like, assumes that the Owners Corp will take responsibility for altered common property unless it is otherwise specified in the by-law.
This is not the same as someone having made unauthorised changes and then selling without telling, but the intention is clear – if no one else takes responsibility then it falls to the Owners Corp in the absence of any legally binding document to the contrary.
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@kiwipaul said:
No minimum sinking fund legally required in any state as far as I know and you don’t even need a sinking fund if you don’t want to.There’s no minimum amount required but you DO need to have a sinking fund under section 69 of the Act
69. Sinking fund to be established
(1) An owners corporation must establish a sinking fund.
It couldn’t be clearer than that (although it doesn’t apply to two-unit schemes).
On the question of a building with an empty fund, unless it had just been used to undertake renovations and repairs, as a prospective buyer I would run 1.6km from any block that didn’t have a reasonable fund (depending on age etc) because that tells me the people running the building are short-sighted morons who are planning to sell as soon as the they get a sniff of any problems.
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PeterC said
Sorry, I should have been more specific. I meant, I wonder where I could get one of those evil tribal statues that could curse certain of my neighbours?
The mask below can be bought here, www.lotusmasks.com/product/10n8.html, a website that says this:
This Mahakala mask is replete with symbolisms of Mahakala, the protector of the Buddhist monasteries. First, the crown of five skulls represent the transformation of five human ills into five virtues: Ignorance is transmuted into the wisdom of Reality; Pride is transformed into the wisdom of Sameness; Attachment becomes the wisdom of Discernment; Jealousy evolves into the wisdom of Achievement; and Anger is turned into the wisdom of Reflection.
Mahakala’s depiction as glaring represents his displeasure at the state of the world. His brows, moustache and beard of blazing fire connotes the powerful energy with which he will consume unclean mental pursuits. His three eyes connotes his ability to see into the past, present and future. The sharp teeth show his power to consume his enemies.
Just the ticket, huh?
Or you could try a cheaper, local option – this Balinese dragon mask on ebay here: www.ebay.com.au/itm/like/221473276419?limghlpsr=true&hlpv=2&ops=true&viphx=1&hlpht=true&lpid=107.
Do we provide good service on the website, or what?
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