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Unless the pergola is listed on the plan as common property, it looks like it’s down to you.
If you’d bought the unit 18 months ago, you could have claimed it as a non-structural defect. If the thing was falling down, you might (maybe) have claimed it as a building defect.
But as I say, unless it’s clearly defined on your strata plan as part of common property – and I’m assuming it’s a separate structure in your garden – then it’s down to you.
Prepare for more fun and games when you tell them what colour you plan to paint it.
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@Whale said:
Clearly the former is my view and KP has another, but I’m sure we’d agree that such matters only become issues when, as I originally suggested, an O/C becomes aware of such un-consented works and does nothing to remedy the situation.braveheart is a member of the O/C, he’s aware of what’s occurred, and in my opinion has an obligation to act and inform and not to get involved in peripheral discussions around what may in future happen if he/she doesn’t.
Absolutely right! As my mother loves to say, “If ifs and ands were pots and pans there’d be no need for tinkers.” (No, we never understood it either.)
This a/c installer isn’t just in breach of whatever by-laws are in place, it’s a breach of strata law:
116 Owners, occupiers and other persons not to interfere with structure of lot or services to lot
(1) An owner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a lot must not do anything or permit anything to be done on or in relation to that lot so that:
(a) any support or shelter provided by that lot for another lot or common property is interfered with …
(2) The owner of a lot must not alter the structure of the lot without giving to the owners corporation, not later than 14 days before commencement of the alteration, a written notice describing the proposed alteration.
And the other thing is, even if the EC does nothing, individuals can take action at NCAT under section 138 to enforce any by-laws that have been breached. You’ll find the new NCAT form HERE (although you will first have to seek adjudication using this Fair Trading form HERE).
Start the ball rolling now and by the time January rolls around you will be able to apply to NCAT to have the EC member removed from the committee for being a very naughty owner.
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@kiwipaul said:If the OC (EC I doubt has the authority, and SM def dosn’t) insisted that you have these screens and then did not enforce the bylaw you might have a case if they don’t apply the bylaw uniformly against everyone.
I think this is a lot simpler than it seems. The by-law says that the trellis has to be of an approved design and previous practice has established what that design is.
A letter to your strata manager asking them to inform the ground floor owners that their trellis is non-compliant and should be removed immediately should do the trick.
Failing that and given the worst case scenario assumption that the EC does nothing, there is nothing to stop Deliria and other owners taking the issue to Fair Trading and NCAT (formerly the CTTT) to seek an order enforcing a by-law.
As far as seeking compensation for failure to fairly enforce by-laws, it is impossible to get a costs award from NCAT (at the moment) so your only recourse s to force the EC to fulfill its duties, rather than seeking compensation for failure to do so.
But I honestly think assuming the worst is not the way to go. A polite but forceful letter, preferably signed by other owners who paid for the Rolls Royce trellis, will fix this.
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@braveheart said:
In any event, a hair salon in a strata unit contravenes By-Law 19 of the Strata Schemes Management Act 1996 – Schedule 1:“An occupier of a lot must notify the owners corporation if the occupier changes the existing use of the lot in a way that may affect the insurance premiums for the strata scheme (for example, if the change of use results in a hazardous activity being carried out on the lot, or results in the lot being used for commercial or industrial purposes rather than residential purposes)”.
This is true … but only if your scheme has that by-law in place. These model by-laws only apply by default to schemes registered before 1996. After ’96, it’s whatever by-laws you adopted at your first AGM and then added, removed or amended thereafter. Admittedly, the chances are that you WILL have this but it’s worth checking.
One of the reasons it’s there is because of the profound effect even one business attracting trade from outside the building could have on OH&S liabilities.
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@daphne diaphanous said:
I would personally buy a strongly built room divider & insert the two ends firmly into two very large & heavy pots. Chosen carefully, it would look good, serve Tony’s purpose & because it is not a fixture, does not require permission from anyone. So there.Funny, I was just thinking what effect a large bushy plant would have … unless there are by-laws banning plants on balconies, you’d get the same effect and chummy next door would have a permanent view blocker.
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I can see why you would think that but unless it shows them on the strata plan or in the by-laws, I would think they came under fixtures and fittings – just like ovens and tumble dryers. They are fixed to common property and sold by the developer but once the warranties run out, they are the individual owners’ responsibility.
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Tony, I know this is going to sound weird but i would find these latest moves encouraging. Your EC is clearly trying to prevent a meeting from taking place so you have ask yourself why. They are also giving you what I think is false information. Again, why?
On the question of false information, I have never heard of this business of proxies only being valid after a meeting has been called and an agenda set. The official proxy form – which must be used – allows the proxy to be given for a period of time and a number of meetings. How can it be used if the future meetings for which it is valid haven’t been called? Have a look at the form – you can download it HERE. You’ll see it doesn’t specify for which meeting(s) it’s valid.
Secondly, even if the meeting goes ahead and you are outvoted, that puts the EC and your neighbours’ cronies in a very tricky position. Once they have rejected your application, you can go to NCAT (formerly the CTTT) and seek an order under section 158 which says …
(1) An Adjudicator may make an order prescribing the making … 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 …
(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.
NB: Section 51 lays down the ground rules for creating exclusive use by-laws, including who will be responsible for the ongoing maintenance of common property affected by any work that is done.
OK, so what do you do next?
If everything you’ve told us is true, my tactic would be to write a letter to all owners, along these lines:
How your EC could waste thousands of YOUR dollars to benefit one owner.
Dear neighbour,
I am an owner resident in Lot XX and I have been trying in vain to be allowed to install exactly the same window shutters as many of you already have. I am prepared to use exactly the same design and colours as everyone else and I am prepared to undertake the maintenance and repair of the shutters and the common property to which they are attached, as required by strata law.
I want to do this to make my home more comfortable at those times when the sun would otherwise shine directly into it. This is a simple facility that many of you already enjoy.
Unfortunately, my shutters would occasionally intrude to a minimal extent into the unobstructed view that a neighbour currently enjoys. The owner is a member of your Executive Committee which has delayed and reject my application at every turn.
The result, in a nutshell, is that my family has to bake in the sunshine so that he can enjoy his view completely unfettered.
In a few weeks, we will hold a general meeting at which I have been warned the owner already has gathered sufficient votes to reject the request again. He only needs 25 percent of people voting at the meeting in person or by proxy to reject the motion.
I need your proxy vote to make sure this doesn’t happen and to avoid the waste of thousands of dollars of your money.
If the meeting rejects what I truly believe is a fair and reasonable request, I have several avenues open to me to pursue this issue, all of which, unfortunately, will be at considerable cost to you, the owners of this building.
If the by-law is rejected, I intend to pursue a Section 158 order at NCAT (formerly the CTTT) compelling the Owners Corporation to pass a by-law that is fair to me and to the majority of owners.
If they defend it, your EC will have to spend an estimated $6,000 to $8,000 in strata manager and legal fees, preparing a submission which, I have been advised, has little chance of success. FYI, the maximum cost to me will be less than $160 as I already have all the documents I require to make a compelling case.
What we are looking at is an utter waste of your money and the EC and strata manager’s time trying to block a perfectly reasonable request that is to the minimal detriment of only one owner.
The alleged “intrusion” is only marginal, temporary and much less than many of you already seem able to cope with. And, as we are often told by planners and real estate professionals, nobody owns the view.
So I implore you to send me your proxy vote on the attached form. If I have enough votes at the upcoming meeting we will be able to stop this nonsense now before it gets any uglier and more expensive.
I am happy to discuss this in detail with any of you and have detailed drawings and pictures to show how my plans fit in perfectly with the rest of the building and how they are only the slightest intrusion into my neighbours view. {Add contact details here}
Now, at this point I have to stress that I am not a lawyer and I obviously am not aware of all the minutiae surrounding this matter. All I can say is if I were in your shoes and the facts were as presented here, this is what I would do.
Also, I don’t know your neighbours and how they would respond to the implied threat. If they hate squabbling and resent being told what to do, the letter may be counter-productive.
On the other hand, in many buildings a lot of people are glad to get a chance to have a kick at the EC for past slights, real or imagined. Only you can decide which way to go.
But go ahead with the meeting because it’s harder to argue that your application has been rejected if a general meeting hasn’t rejected it.
Best of luck.
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@Investor13 said:What are the other avenues available? Can I go to the CTTT.
(This is an investment unit so I only know a couple of owners. It is a large complex but there are only 3 members of the EC and they act as one. The Secretary is also the Chairman.)
Right now your only option at the NCAT (as the CTTT is now known) would be to apply to have a strata manager appointed to take over the running of the owners corporation. You would have to take a strata manager with you who was prepared to do the job and you’d have to have a very compelling argument that the EC was harming the interests of the majority of owners by continuing to have this person as secretary.
Seeking the stautory appointment of a strata manager is one of those “be careful what you wish for” scenarios as they are legally obliged to do everything by the book and you and your neighbours will have no say in how the building is run for the duration of an appointment.
Bide your time until the new laws come in and you could apply to the NCAT to have this member removed from her office ot the EC completely.
Even then, I think an approach to the other EC members and other owners raising your concerns would be a necessary first step and I think that is your best move right now.
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Tsk, tsk, Unit Dweller, you managed to commit two cardinal Forum sins in the one posting. First you created a new topic when the existing thread (this one) would have done perfectly well. Then (shudder) your headline was only a couple of words shorter than the post. But we are very forgiving here at Flat Chat, so consider yourself absolved … this time.
To answer your question, I would avoid any prescriptive by-law that sets a minimum standard for the floor because that can’t take into account all the variables, including the thickness and density of the slab, the acoustic properties of the building or, indeed, the behaviour of the occupants. I would favour something like:
Owners may not put down, create or change the floor covering in any way so that it provides less sound insulation than would be provided by wall-to-wall carpet professionally laid on top of a high grade underlay.
Any owner who does so, causing any increase in noise transmission to any other unit will be required to immediately restore the flooring to its previous noise insulation properties at their own expense.
Now I’m not a lawyer – and I’d be interested to hear from someone who is – but I reckon that puts the onus on the person changing the flooring to make damn sure they have the very best materials and if they are stupid enough to believe Dodgy Dave from the Floating Flooring Emporium that 3mm of plastic will “do the trick” then they deserve all the grief that will doubtless be coming their way.
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At the risk of sounding glib, a $1000 special levy is what you get when your quarterly fees are only $850. A properly managed building would have already had that money in the bank and you wouldn’t have to find all that cash all at ones (which may hurt some of your neighbours on reduced or fixed incomes).
That’s one good reason for the tightening up of the Sinking Fund rules in the upcoming strata law reforms.If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
@leif said:Simple Question and does anyone know
Can the Council out of the blue without any declared reason quote the EPA reg 2000 and demand when no changes have occurred.
Can the Council demand removal without the option to fire prof the feature
Is the actual feature a fire risk as it does not penetrate the wall?
Generally speaking, according to our friends at Integrated (ibc.net.au) councils will hit buildings with the Rolls Royce assessment of what is required to meet fire safety regulations but a smart consultant would then sit down and negotiate with them what is both acceptable and achievable.
If you come at this from the point of view that what the council really wants is to make your building safe and what they really don’t want is to be wasting time and money dragging Owners Corps through the courts to achieve that, then suddenly areas of compromise and agreement open up.
Depending on how hefty your upgrade is likely to be, you could do a lot worse than hire a consultant (preferably one who knows the council concerned) to steer this one through for you.
However, at the end of the day the council can wave a copy of the fire regs under your collective noses and demand that you comply with every bit of it that they think is required. And if you want to dig your heels in, better lawyer up and get ready for an expensive battle in the courts.
So negotiate – they don’t want to see an emergency order slapped on your building any more than you do.
I’m not sure what you mean by “with no reason” and “out of the blue” but it’s true that councils will respond to a report from someone who thinks a building isn’t fire safe and they will also do their own surveys, street by street, of buildings they think may not be compliant.
But surely the significant factor in all this is whether or not a building is safe. It’s not so long ago that apparent breaches of fire regs led to the death of a young woman in Sydney
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I’m with Scottie on this. $850 a quarter is so low that I would be wondering what is being skimped.
On the question of removing the pool, take in the cost of the rebuild and the reduction in value of your property and it doesn’t add up to a real saving.
So, how is your sinking fund?
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