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@Whale said:
jezzie – the very first thing that your Owners Corporation (O/C) needs to do, like right now, is write to the Auction Agent to formally advise that alterations to both the lot and to the common property (include known details) have been undertaken by the current Proprietor without the prior consent of the O/C, that the matter is currently before the NSW Administrative and Appeals Tribunal (NCAT), and that unless an appropriate Special By-Law is Registered prior to settlement then the O/C requires any future Proprietor to at their expense to restore the common property to its pre-renovation state.You may want to obtain some legal assistance with the drafting of the above; perhaps have your E/C Secretary or Strata Manager contact one of FlatChat’s sponsors HERE.
I am just reiterating this first part of what Whale wrote because it is vitally important that you get this on the record in some form NOW. If you can also hold a quick EC meeting and have the letter accepted into the minutes, so much the better. This puts the onus straight back on to any future purchaser’s solicitors or strata search company to inform them and they can’t come back in the future and say they didn’t know. That in turn should get your recalcitrant owner to do something about this.
You could also get a builder to give you an estimate of how much it would cost to reinstate all the common property so you can put a financial figure on this and present it to them as a debt against the future sale of their property.
You don’t have to have everything all legal and ship shape at this stage. All you need is to make a valid claim and that will cause enough confusion to undermine the owner’s efforts to make this a clean sale. They seem determined to profit at their neighbours’ collective expense and you are entitled to do whatever is required to prevent this.
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I am reliably informed that strata managers frequently apply for an extension of their statutory appointment on the grounds that the problem that required their appointment hasn’t gone away nor has it substantially diminished (i.e. the same people who caused the problem are still there). This is usually allowed as a matter of course. There would be no harm in telling your strata manager that you would like them to do this.
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@stanno said:This is difficult because its all after-the-fact. If the EC learns that this AGM is invalid, is there legislation to dictate that we must hold a new “first” AGM and re-elect the SM and EC? This is particularly important. If there is, can you please reference it.
Section 153 of the Act (below) says that an NCAT adjudicator can declare decisions made by a meeting (and elections at the meeting) invalid if provisions of the Act in relation to meetings have not been adhered to. However, they can choose NOT to make that order if the decisions of the meeting have not affected anyone adversely and if compliance with the Act would not have changed the outcome of the meeting.
Now, dealing with the proxies as a separate issue, they have to be presented on a form signed and dated by the lot owner who is giving the proxy. The strata anager should have these on record – if he doesn’t they are invalid.
Now, if you can prove that the bogus proxy votes were used to pass a false majority, you could have a case (you may need statutory declarations from people who allegedly gave their proxies).
However, if the indications are that the only thing wrong with the meeting was that it wasn’t quorate and the majority would still have passed the motions anyway, it’s a tougher case to win. For instance, if the bogus proxies that made the meeting quorate were counted as “no” votes and the motions would still have passed then the odds are stacked against you.
That said, the strata manager’s behaviour has been highly unprofessional (to say the least) and revoking the decision of the meeting may be the easiest way to resolve the issue.
If you need legal advice, our friends at Makinson d’Apice (click on the ad on our home page) will help you out. If you want to research previous cases, go HERE , then click on a year, click on ‘search database’ and type in ‘quorum”.
You will find links to myriad weird and wonderful cases – including one where 11 out of 53 units comprised a quorum (25%) because nine of the owners were unfinancial and therefore not able to vote, meaning the quorum was based on 44 rather than 53 lots. Have fun.
By the way, if NCAT does declare the meeting invalid then the contract with the strata manager is also invalid. They might kick, scratch and squeal (and appeal) but if they don’t return your documents within a reasonable time, they could be in a lot of trouble.
153 Order invalidating resolution of owners corporation
(1) An Adjudicator may make an order invalidating any resolution of, or election held by, the persons present at a meeting of an owners corporation if the Adjudicator considers that the provisions of this Act have not been complied with in relation to the meeting.
(2) An Adjudicator may refuse to make an order under this section but only if the Adjudicator considers:
(a) that the failure to comply with the provisions of this Act did not adversely affect any person, and
(b) that compliance with the provisions of this Act would not have resulted in a failure to pass the resolution or have affected the result of the election.
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Wow! I did not know that. The things you learn in this place … There is a time limit on the Owners Corp or management committee’s exercise of its functions (See item 9 below). I have fixed my original response (not to cover up but to get the facts right). Having said that, I don’t think I have ever encountered a case where this clause has been employed. Anyone else heard of it?
Also, all that need to happen is for the EC to say they have considered a request and have decided not to approve it. That takes you into a whole other area but at least their decision is on the record.
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@drshelley said:
At this stage I think our response will be that even 11mm regupol is only a ‘distant second’ to carpet. They will still take a risk that this will not fix the problem. To quote our neighbour she states that ‘she is confident this premium underlay will considerably improve the noise transfer into our unit and meet the by-law”.Yes, my response would be that you can’t tell them how to deal with the problem but to caution them that you will not be satisfied with a solution that doesn’t properly address the noise transfer issue. A sensible if slightly more expensive solution would be to put 11mm Regupol on top of the existing insulation which is obviously more likely to do the trick.
Even so, the CTTT order is about stopping the noise, not laying down insulation and they should consider whether it is worth risking having to go back and do it all over again, After all, it was so-called “experts” who told them the current insulation would be fine. Attempting a solution is not the same as solving a problem. If it doesn’t worrk, all it means is you didn’t try hard enough and that’s exactly how NCAT will see it if the problem continues.
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The law is on your side.
The strata Act includes repairs to “burst or blocked water or sewerage pipes” among emergencies that don’t require approval of the Owners Corp for spending that has not been budgeted
The Residential Tenancies Act includes “a blocked or broken toilet” as and urgent or emergency repair.
In the absence of any procedure laid down in the by-laws detailing who to contact in an emergency when the strata manager isn’t there, you are well within your rights to take reasonable action to fix a problem that has the potential to damage the whole building.
The busybody who has been emailing your neighbours to complain about you not following the rules should hang their sorry heads in shame. You deserve your neighbours’ gratitude for dealing with a problem quickly while others did nothing.
It would be a very different story if half a dozen units were flooded with backed up sewage and you did nothing because it wasn’t strictly in the “rules”.
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@Frans said:
The Secretary does not wish to become ‘involved’ & new SM very busy as off OS next week. Guess the next question is, should we send letter to Building Company or take the word of overseer?According to the Strata Community Australia’s mostly excellent “Who’s responsible …?” document, a fence between a lot and an external property is 100 percent common property and an Owners Corporation responsibility.
The Owners Corp has a duty to maintain and repair common property. without limit. Time to fire off a letter to your strata manager and secretary pointing this out, if only for future reference. (By the way, a secretary who ‘doesn’t want to get involved’ shouldn’t really be on the EC).
There’s no point in the fence being fixed until the work is finished. But you could find out the name of the developer (not the builder) and politely request them to pay for gardeners to come round NOW and fix up the damage to your garden.
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@Jef said:
There must be lots of strata plans where there are no separate water meters for each lot. How do other Owner Corporations recoup the cost of water usage by lot owners in such circumstances?There is only one legal way to do this and that is charging residents according to their Unit Entitlements.
However, that works against a single resident living in a large apartment who pays more than two couples living in a small apartment.
The best answer is to retrofit water meters to individual apartments – and it can be done. Basically the owners corp can pass a bylaw saying that anyone who retrofits a meter to their own apartment will be charged according to their usage and everyone else will be charged for the remainder according to their UEs.
Water savers will rush at the opportunity and the excessive water users will have to pay more anyway as the unmetered access grows and the number of units sharing the cost diminishes.
By the way, I know one building where they persuaded somewhat reluctant commercial unit owners to have a meter installed only to discover that they were not, in fact, using much more water than anyone else.
So, to answer you question, UEs are the basis of the correct calculation and water meters are the way to go for the future.
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@drshelley said:
When we asked our neighbour what they intended doing as 6 weeks has now passed, she said that she was waiting for further info from the acoustic engineer and then would be putting a submission to OC for approval???
Presumably they want to delay the process for as long as possible by seeking “acoustic reports” that will tell them nothing except that the only truly effective sound dampener is thick carpet on a top quality underlay, with an 11mmm quality underlay under floorboards is a fairly distant second.
The only submission to the Owners Corporation that would be relevant would be notice that they intend to alter common property by ripping up the floorboards and putting additional insulation underneath.
They could just be messing with your head and the carpet layers will roll up on the very last day of the deadline. I would be tempted to send them a letter – perhaps a lawyer’s letter – telling them that you have noted that they have not commenced work to abide by the terms of the CTTT Order and their stated intention to pursue this through the Owners Corp.
You are giving them fair warning that there is no respite offered to them via the Owners Corp which can’t overturn an NCAT (CTTT) order. The Owners Corporation can’t instruct them on what kind of noise insulation to use as the CTTT order simply states that they have to fix the problem. The Owners Corp has no say in how that is to be achieved and even if they did tell them what to do and it didn’t work, they would still have to fix it.
I would add that any failure to complete work within the deadline will be the subject of IMMEDIATE further action at NCAT which may impose fines of up to $5500 and award costs incurred by you, the plaintiff, in pursuing the order.
Considering the length of time that you have suffered noise due to their non-permitted removal of carpetting, any efforts to pursue this issue through the Owners Corp will been regarded as a delaying tactic and will be presented to NCAT as such, and you will accordingly pursue further orders and the imposition of fines with the utmost vigour.
The addition of a new by-law allowing the floor seems unlikely since it will be inferior to the standard item of strata law, section 117, that forbids residents from disturbing another resident’s peaceful enjoyment of their lot. They can’t use even the request for such a by-law as a stalling tactic – at least not without the risk of hefty fines at NCAT.
Your choice is to jump now or wait until deadline day. They don’t sound like the kind of people who like losing – perhaps this is their last little show of defiance before they cave in.
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Do you actually have building insurance? In NSW lots of two are allowed to NOT have strata insurance if they so desire.
Working on the assumption that relations with your neighbour have broken down irretrievably, if you have proof that the other owner blocked the necessary work which was later ordered by the CTTT you could send him a bill for the restoration work and then pursue it through small claims at a Magistrates Court.
Just because you live in strata doesn’t mean you can only go through the strata processes to claim reparation for someone else’s behaviour.
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Take them to Fair Trading (the residential tenancies division, not the strata side).
Failing that, raise an action at the magistrate’s court for a full refund plus costs – that might get the messages across.
Some agents won’t pass on bad news to the landlords unless they have to. A Fair Trading or court summons would pretty much do the trick and if your son goes along an says he didn’t want to take legal action but the agent wouldn’t do anything, he’ll get a lot of sympathy from the bench.
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@kiwipaul said:
The damage has been caused by the failure of the strata to act in a timely manner so I don’t believe the insurance (strata or contents) will be liable so the cost falls on the strata (ie both of you).I wouldn’t be so quick to flick the idea of claiming on insurance. It depends on the policy and it depends on the insurer.
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As far as I know, the proxy form only relates to voting at meetings. What Becks needs is a letter from his parents appointing him as their agent under section 121 of the Act. There is no need that I can see for a Power of Attorney (unless Section 121 only relates to receipt of documents, which I doubt). Worth a call to Fair Trading or a lawyer to get their view. This is what section 121 says:
121 Can an owner of a lot appoint an agent for dealings with the owners corporation?
(1) An owner of a lot may appoint an agent to receive notices and other documents under this Act if the owner is unable to deal with those notices because of intellectual impairment or physical impairment, illiteracy or an inability to read or write English sufficiently well or absence from the lot.
(2) A person must not be appointed as an agent unless the person is a resident of Australia.
(3) An appointment of an agent may be made at any time and may be revoked at any time.
(4) However, the appointment or revocation has no effect until communicated to the owners corporation and recorded in the strata roll.
(5) If an agent for an owner has been so appointed and the name and address for service of the agent is recorded on the strata roll, notices or other documents required to be given to the owner under this Act are to be given to the agent.
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@Kangaroo said:
It may be (is) the OC’s legal responsibility to get it replaced, but it’s the current owner’s responsibility to pay for it. If he/she can get it back from a tenant, then that’s up to them.Sorry, Roo, but you are wrong, regardless of how stupid you think it is. Common property is the responsibility of the Owners Corp. The owners corp has allowed a situation to develop where common property have been removed and they have done nothing about it.
How could they have known? Well, regular fire safety checks would have picked it up but even so, ignorance of what is happening in their building is no excuse. That’s why every time a unit in a building is put up for sale or rent, it’s well worth someone from the EC having a sticky beak to make sure all is hunky dory.
By the way, this principle came to my attention in a case where an owner had replaced the sliding doors on his balcony with fancy folding timber ones – something that could only have been spotted by someone taking a boat out to sea at Bondi Beach and training high-powered binoculars on the building. Nevertheless, years after the unit was sold and the doors (inevitably) failed, the new owner was able to argue successfully that the new doors were still OC responsibility and they had to pay for the much more expensive repairs.
And where did the principle of “Caveat OC” come from? The same place that says you can’t blame a new owner for a problem caused by a previous one. The buck has to stop somewhere and that place is the OC. If the OC can’t be bothered to check on their own property, they they can’t complain when it goes walkies.
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@Rhodie said:
This is compounded by the owner having recently purchased the unit. Previous owner/tenant could have removed the closer.If the closer was removed by the previous owner or one of the previous owner’s tenants then the current owner can’t be held liable for its replacement. Unless you can prove it was the current owner who removed it, the liability falls back on the Owners Corp (as it should, for failure to inspect and maintain common property fire safety installations).
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